NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1904-16T1
Qian Zhong,
Plaintiff-Respondent,
v.
Xue Ye,
Defendant-Appellant.
_________________________________
Submitted December 6, 2017 – Decided August 2, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-1461-04.
Cores & Associates, LLC, attorneys for
appellant (Melanie Szuba Appleby, on the
brief).
Qian Zhong, respondent pro se.
PER CURIAM
Plaintiff Qian Zhong and defendant Xue Ye were married in
1990, and had two children, Cathy, who was born in 1997,1 and Adam,
1
Cathy passed away in 2005.
who was born in 2000.2 The Chancery Division, Family Part
dissolved the parties' marriage in a Final Judgment of Divorce
(JOD) entered on June 17, 2006. The JOD incorporated a
comprehensive Property Settlement Agreement (PSA) that the parties
negotiated with the assistance and advice of their respective
independent counsel. The PSA addressed all of the issues related
to the dissolution of the marital estate, awarded defendant
physical custody of the children and joint legal custody to both
parties, provided parenting time to plaintiff, and established
plaintiff's child support and alimony obligations. The PSA also
obligated plaintiff to provide and maintain health insurance
coverage to accommodate Adam's special needs related to his severe
neurological problems that restrict his mobility and require
constant personal attention.
The legal termination of the marriage did not assuage the
intensity of the rancorous relationship the parties continue to
have as parents. The parties have filed numerous post-judgment
motions before the Family Part and three appeals before this court.
See Qian Zhong v. Xue Ye, No. A-2480-10 (App. Div. Mar. 15, 2012);
Qian Zhong v. Xue Ye, No. A-0674-10 (App. Div. Mar. 15, 2012);
2
We use pseudonyms to refer to the children to protect their
privacy and preserve the confidentiality of the information
presented to the Family Part. R. 1:38-3(d).
2 A-1904-16T1
Qian Zhong v. Xue Ye, No. A-1429-09 (App. Div. Sept. 21, 2010).
Thus far, these legal determinations have not resolved the
underlying cause of the problems.
In this fourth appeal, defendant seeks review of an order
entered by the Family Part on November 29, 2016, denying her motion
to: (1) modify child support; (2) award her sole legal custody of
Adam; (3) compel plaintiff to reimburse her for expenses she
incurred as a result of plaintiff's decision not to exercise his
parenting time with Adam; and (4) compel plaintiff to provide
health insurance for Adam indefinitely. Defendant sought this
relief after learning plaintiff had relocated to China. The motion
judge decided defendant's motion based only on the parties'
conflicting certifications. The judge explained the basis of her
decision in a statement of reasons, which was later supplemented
by an Amplified Opinion submitted pursuant to Rule 2:5-1(b), after
defendant filed her Notice of Appeal. Based only on the parties'
conflicting certifications, the judge did not find a sufficient
change in circumstances to warrant any of the relief defendant
sought.
After reviewing the record developed before the Family Part,
we disagree with the motion judge's conclusion that plaintiff's
relocation to China does not constitute a significant change in
circumstances. Plaintiff's unilateral decision to relocate to
3 A-1904-16T1
China makes him unavailable to participate in Adam's life and
leaves defendant with the sole responsibility to provide the
emotional support and special care required by their severely
disabled son. Measured against the parenting time arrangement and
other matters related to Adam that the parties negotiated and
agreed to abide by in the PSA, plaintiff's relocation to China
constitutes a significant departure from these court-sanctioned
provisions.
We thus reverse the order denying defendant's motion and
remand the matter for the court to conduct a plenary hearing to
allow the parties to testify and develop a proper record from
which the judge can determine what changes are needed to
accommodate this new parenting arrangement. The judge should
order the parties to file updated Case Information Statements
(CIS) and consider permitting limited pre-hearing discovery
related to Adam's current and future needs. We leave it to the
discretion of the court to determine the form and scope of such
discovery. Before we address the merit of the arguments raised
by defendant, we will briefly describe the procedural journey that
preceded the order under review.
On July 25, 2016, defendant filed a pro se emergent Order to
Show Cause (OTSC) after she learned that plaintiff was planning
to relocate to China. Defendant sought an order from the Family
4 A-1904-16T1
Part to compel plaintiff to maintain insurance coverage for Adam
"indefinitely" and grant her sole custody of the child. Due to
his severe neurological limitations, Adam required the assistance
of a nurse during those times plaintiff did not exercise his right
to parenting time with his son. Defendant requested the court to
order plaintiff to reimburse her for the cost she allegedly
incurred to hire a nurse for this purpose from 2013 to 2016.
Defendant also petitioned the court to require plaintiff to
establish a "fund" to cover the cost of future derelictions of his
parenting time obligation.
On July 27, 2016, a Family Part judge granted defendant's
OTSC, in part. The judge granted defendant "full authority" to
act on Adam's behalf concerning "issues related to medical
treatment and medical insurance[.]" Toward that end, the judge
authorized defendant "to communicate directly with the insurance
company concerning all matters relating to [Adam's] medical
coverage in light of [plaintiff's] alleged departure to China[.]"
The court denied without prejudice the balance of defendant's
requests.
On August 2, 2016, the return date of the OTSC, a different
judge found defendant was not entitled to seek judicial
intervention under an OTSC because she did not meet the standard
for emergent relief under Crowe v. DeGioia, 90 N.J. 126 (1982).
5 A-1904-16T1
The judge noted that both parents had joint legal custody pursuant
to the PSA. Defendant had "access and privilege to all health
care information and medical insurance coverage regarding her son
. . . [including] the ability to make any claims or appeal any
coverage denials . . . ." The judge ordered that any further
request for relief of this nature should be made by motion
practice. On August 3, 2016, defendant filed a post-judgment
motion seeking the same relief that she requested in the OTSC.
From this point forward, the parties submitted lengthy,
conflicting certifications to the motion judge that retraced many
of the most contentious parts of their acrimonious post-judgment
interactions. The parties were both pro se. From his residence
in China, plaintiff submitted a certification dated October 1,
2016, contesting defendant's factual claims for relief. Plaintiff
also attached to his certification unauthenticated documents he
labeled "exhibits." Defendant submitted a reply certification
dated October 11, 2016, replete with factual allegations that
conflict with plaintiff's assertions. Both parties cited various
sections of the PSA that they claimed supported their legal
position before the court.
In an order prepared by the court, dated November 29, 2016,
the motion judge for the most part denied defendant any relief.
However, the judge granted defendant's request "to compel
6 A-1904-16T1
plaintiff to disclose [his] address, phone number, email address,
and fax number promptly after each change overseas . . . ." The
court also granted defendant's request "to serve each other via
email while plaintiff is living overseas . . . ."3 The judge made
clear, however, that this did not absolve the parties of their
obligation to "properly serve the other party" pursuant to Rule
1:5-2 and Rule 4:4-4.
In the Statement of Reasons attached to the order, the motion
judge explained the reasons for denying defendant's application
to compel plaintiff to reimburse her for the cost of nursing care
that she incurred when plaintiff did not appear for his parenting
time with Adam:
A custodial parent who seeks reimbursement for
child support based on the premise[] that the
non-custodial parent has failed to utilize his
visitation time is routinely denied because
money already paid was for the benefit of the
child, and presumably used for the child. See
J.S. v. L.S., 389 N.J. Super. 200-06 (App.
Div. 2006).
The judge's assertion that the denial of defendant's
application under these circumstances is "routinely denied" is not
supported by the facts of J.S. or the compelling facts we confront
3
The actual wording of this particular section of the order
contains a ministerial error that mixed up the parties designation
in this litigation, giving plaintiff the relief intended for
defendant. The judge corrected this error in her Amplified
Opinion.
7 A-1904-16T1
here. In J.S., the defendant sought reimbursement of court-ordered
child support after a paternity test revealed he was not the
child's biological father. J.S., 389 N.J. Super. at 201-02. The
trial court granted the defendant's application to relieve him of
his obligation to pay child support, but denied his request to
compel the plaintiff to reimburse him for the child support he
previously paid. Id. at 203. In affirming the trial court's
decision, we held:
We are not persuaded by defendant's argument
that he should be entitled to recoup his money
from plaintiff either because of her deceit
or because she has been unjustly enriched by
her use of the money to care for her child.
As the Court has explained, "[b]ecause the
responsibility to support runs from parent to
child, not parent to parent, the custodial
parent was not 'unjustly enriched' by
receiving sums and considering them []
payments for the support of their children."
"Each parent has a responsibility to share the
costs of providing for the child while [he or]
she remains unemancipated."
[Id. at 205-206 (emphasis added) (first
quoting Pascale v. Pascale, 140 N.J. 583, 592
(1995); then quoting Martinetti v. Hickman,
261 N.J. Super. 508, 512 (1993)).]
The facts and underlying public policy that formed the basis
of our decision in J.S. stand in sharp contrast to the salient
facts of this case. Here, defendant seeks to enforce the
provisions in the PSA that expressly addresses the need for
plaintiff to honor his parenting time obligations to Adam and
8 A-1904-16T1
provides the precise remedy defendant seeks to enforce. Article
III, Section 3.2(c) of the PSA provides, in relevant part:
The [plaintiff] must make every effort to
avoid the oversea[s] trip that interferes with
his regular parenting obligation. The
[plaintiff] will show proof of [the] necessity
of an oversea[s] trip upon [defendant's]
request . . . Within any 12-month period the
number of interrupted parenting weekend
oversea[s] trip[s] shall not exceed 4 times.
The [plaintiff] shall not travel for two or
more consecutive weekends due to the respite
relief required by [defendant].
[(Emphasis added).]
Subsection 3.2(d) further provides, in relevant part:
It is agreed that if any party does not fulfill
his/her obligation toward scheduled parenting
time due to reason[s] other than their own
sickness . . . the other party may ask for
reimbursement for additional expenses related
to the child care . . . these expenses may
include but [are] not limited to childcare
expenses at the market rate of a professional
nurse.
[(Emphasis added).]
In the certification dated October 11, 2016 that defendant
submitted to the Family Part in support of her motion, defendant
alleges that that plaintiff has not fulfilled his parenting time
obligation for the past nine months. She claims plaintiff's
dereliction has seriously affected her health and compromised her
financial situation. She averred:
9 A-1904-16T1
I really do not know how long I can last
without a break. I have no money to advance
in [Adam's] child care expenses during
[p]laintiff['s] absent parenting obligations
. . . [because] all private self[-]pay nurses
must be paid at the end of each shift and
private nurses [are] much cheaper than a
nursing agency. Setting up an account [to]
allow[] nurse[s] [to be] paid by [p]laintiff
directly is the only option with him overseas.
Otherwise, I have no money [to] pay, [and]
[Adam] ultimately will be the one suffering
when I have to sleep and cannot respond to his
medical demands.
Defendant was also concerned about the possible collateral
consequences plaintiff's relocation to China may have on his
responsibility to provide health insurance coverage to Adam. In
her certification, defendant noted that under Article X, Section
10.5 of the PSA: "In the event the [plaintiff] does not have
medical insurance through his employment, he shall replace same
at his sole expense with a similar policy for the children
providing comparable coverage . . . ." Among the seventeen
enumerated requests for relief defendant listed in her July 25,
2016 pro se application, defendant specifically sought a court
order to compel plaintiff to continue his employment-related
insurance coverage for Adam or assume personal financial
responsibility for the child's medical needs in the event the
policy was no longer available.
10 A-1904-16T1
In the Amplified Opinion, the motion judge found, "while
[defendant's] certification tells a perhaps compelling story, she
points to no specific estimates or evaluations of what a temporary
caregiver would cost or any other examples. Regardless of this
substantive deficiency, again defendant failed to [satisfy] the
obligations as set forth in [Rule] 5:5-4(a)." However, the judge
also made clear that defendant's application was denied "without
prejudice."4
The motion judge's observation concerning defendant's failure
to provide an updated CIS as required by Rule 5:5-4(a) is correct.
However, under the prevailing circumstances, the court has a parens
patriae responsibility to Adam to ensure plaintiff's decision to
relocate to China does not adversely affect this special-needs
child's best interest. See Fawzy v. Fawzy, 199 N.J. 456, 474-75
(2009). In this light, we now turn to the relevant standard of
review.
To modify a custody order or a consensual agreement on
custody, courts follow the procedural framework outlined in Lepis
for modification motions. First, the court must determine if the
party seeking relief has made a prima facie showing of changed
4
Every decision made by the Family Part that involve the financial
welfare of children is subject to revision or modification based
on changed circumstances. See Lepis v. Lepis, 83 N.J. 139, 151
(1980).
11 A-1904-16T1
circumstances. R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div.
2014). If the party makes this initial showing, she is "'entitled
to a plenary hearing as to disputed material facts regarding the
child's best interests, and whether those best interests are served
by modification of the existing custody order.'" Costa v. Costa,
440 N.J. Super. 1 (App. Div. 2015) (quoting R.K., 437 N.J. at 62-
63).
In assessing whether there are requisite changed
circumstances, the court must consider the circumstances that
existed when the court made the original determination. Sheehan
v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958). The
focus of every judicial determination about custody and parenting
time is "on the 'safety, happiness, physical, mental and moral
welfare' of the children." Hand v. Hand, 391 N.J. Super. 102, 105
(App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536
(1956)). However, as a general rule, hotly contested cases
often turn on credibility determinations,
which by their nature are impeded when the
trial court cannot make first-hand
observations of the witnesses. Additionally,
the absence of live testimony obstructs the
trial court's ability to obtain additional
details that may be necessary to augment or
clarify information contained in the
documentary evidence, potentially impairing
the judge's ability to make more detailed
factual findings. In short, . . . submitting
. . . documents in lieu of testimonial
evidence, fails to allow the judge to resolve
12 A-1904-16T1
disputed issues or make credibility
determinations.
[Div. of Child Prot. & Permanency v. J.D., 447
N.J. Super. 337, 353 (App. Div. 2016).]
Here, the motion judge must make a fact-sensitive assessment
of the impact plaintiff's relocation has had on his financial and
emotional responsibility to help Adam cope with his special needs.
The parties must submit updated CIS's to allow the judge to
determine whether modification of plaintiff's child support
obligation is warranted. Based on the evidence presented, the
judge must determine whether plaintiff is required to reimburse
defendant for expenses she incurred when plaintiff failed to honor
his parenting time obligations, pursuant to Subsections 3.2(c) and
(d) of the PSA.
Furthermore, because Adam has reached the age of majority,
the court may also consider whether it would be in his best
interest for the parties to establish a special needs trust. The
Supreme Court had the opportunity to address and clarify this
approach in J.B. v. W.B., 215 N.J. 305 (2013). Writing for a
unanimous Court, our colleague Judge Cuff explained some of the
benefits of this type of trust:
A special needs trust in conjunction with a
thoughtful plan to gain eligibility and
receipt of government benefits, including
Medicaid, SSI, and Division of Developmental
Disability (DDD) programs, permits a family
13 A-1904-16T1
to provide health care, income, housing, and
vocational services for their disabled,
dependent child. The redirection of a child
support obligation from a parent to a trust
designed to meet the present and future needs
of the dependent, disabled child should not
be considered exceptional or extraordinary
relief, if such a plan is in the best interests
of the unemancipated child.
[J.B., 215 N.J. at 329-339.]
If the circumstances warrant it, the court also has the
discretionary authority to appoint a guardian ad litem to represent
the best interests of the child. Id. at 332-33; R. 5:8B.
We thus reverse and remand for the court to conduct a plenary
hearing to enable defendant to testify and present evidence in
support of her request for relief. Plaintiff may petition the
Family Part judge to participate at this hearing remotely from
China, via some form of electronic, audio-visual arrangement. In
deciding whether to grant such a request, the judge must apply the
two-part test first established by this court thirty years ago in
Aqua Marine Prods., Inc. v. Pathe Comput. Control Systs. Corp.,
229 N.J. Super. 264, 275 (App. Div. 1988), and subsequently adopted
by our Supreme Court in State v. Santos, 210 N.J. 129, 141 (2012).
Reversed and remanded. We do not retain jurisdiction.
14 A-1904-16T1