CHUL S. PAK v. JUNG AE KIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2983-04T12983-04T1

CHUL S. PAK,

Plaintiff-Respondent,

v.

JUNG AE KIM,

Defendant-Appellant.

________________________________

 

Submitted: May 2, 2006 - Decided May 23, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, FM-02-794-04.

Michael S. Kimm and Nickolas E. Nasuta, attorneys for appellant (Mr. Kimm and Mr. Nasuta, on the brief).

David M. Taus, attorney for respondent.

PER CURIAM

Defendant Jung Ae Kim (wife) appeals from two orders entered by the court on January 21, 2005, following a two-day trial. The court enforced a property settlement agreement executed by the parties on October 8, 2003 respecting equitable distribution and child custody, entered a Dual Judgment of Divorce, and awarded husband counsel fees. On appeal, wife contends that the trial court's grant of her former husband's motion in limine enforcing the parties' property settlement agreement constituted a "palpable miscarriage of justice"; the court's "inquisition and use of [her] status-factors including immigration status, irrelevant to the case, violated basic constitutional principles and therefore tainted the integrity and fairness of the entire proceeding below"; and her former husband had an insufficient legal basis to support his complaint for divorce on grounds of extreme cruelty. She further contends that the judge erred in awarding husband $7,537.50 as partial reimbursement of counsel fees incurred in connection with the litigation. We are not persuaded by any of wife's arguments and affirm.

This case involves a seventeen-month marriage. The parties began residing together in August 2001, were married in May 2002, and had a daughter Amanda in September 2002. They separated and signed a Custody and Property Settlement Agreement on October 8, 2003, which gave sole legal and physical custody of Amanda to husband, and stated that the parties' assets, consisting of a $27,000 savings account, would be equally divided. However, a contemporaneous receipt acknowledged that wife had received a greater share, $20,000 in cash from husband "in complete resolution of all equitable distribution and property settlement of the pending divorce as pursuant to the Property and Custody Agreement dated October 7, 2003." A handwritten notation provided that wife had received $2,000 in cash and that $18,000 had been wired to her mother in China. The receipt further reiterated that wife agreed to give up all rights to legal and physical custody of their daughter Amanda.

Husband filed a complaint for divorce on the grounds of extreme cruelty on October 9, 2003. On March 17, 2004 wife filed an answer and asserted a counterclaim on the grounds of extreme cruelty. Both parties were represented by counsel. There has been a significant amount of litigation between the parties from the filing date of the complaint through the trial date of December 2004. In all stages they were represented by various counsel, and a Korean interpreter was present. We further note that when wife met with the custody-parenting time mediator on May 3, 2004, she was again assisted by a Korean interpreter. At that time wife agreed that husband would maintain custody of their daughter as the parent of primary residence, which was memorialized in a consent order prepared by the mediator and which was signed by wife on May 20, 2004.

Our scope of review of a trial court's fact finding and discretionary rulings is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord due deference to the credibility findings and the feel of the case by the trial judge who has heard and observed the witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (1988); Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). This is particularly so with Family Part judges who possess special expertise in these type of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We are satisfied the court's rulings are supported by substantial credible evidence in the record and are in accordance with the applicable law. Judge Torack set forth the parties' positions, acknowledged the controlling law, made findings of fact, and applied the law to those findings. We affirm the Dual Judgment of Divorce and Order and Judgment for Counsel Fees substantially for the reasons articulated in the trial record and the court's supplemental letter of August 2, 2005 submitted pursuant to Rule 2:5-1(b).

Our courts have "long espoused a policy favoring the use of consensual agreements to resolve marital controversies." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). We are satisfied that Judge Torack appropriately responded to husband's in limine motion by conducting a plenary hearing pursuant to Harrington v. Harrington, 281 N.J. Super. 39 (App. Div.), certif. denied, 142 N.J. 455 (1995). He found that wife's testimony lacked credibility in almost all respects. The trial judge also made express findings that wife understood English and was represented by counsel when she signed the Custody and Property Settlement Agreement, and concluded that she presented no prima facie showing of unfairness of the agreement. The record is devoid of any evidence of denial of wife's access to the courts of this country or of any bias towards her as a result of her status as a Korean national. To the contrary, wife had more than ample opportunity to litigate every aspect of her seventeen-month marriage in our court system.

During the trial husband testified about his allegations of abuse. We are satisfied they were sufficient to sustain a finding that he suffered extreme cruelty under N.J.S.A. 2A:34-2c. Wife's challenge is without merit. R. 2:11-3(e)(1)(E).

Moreover, we discern no procedural or substantive error in the fee award to husband. The obligation and amount were within the court's broad discretion. The trial judge considered the appropriate factors and sufficiently explained the basis for his ruling. See, e.g., Williams v. Williams, 59 N.J. 229, 233, (1971); Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999); R. 5:3-5(c). For example, the judge found that wife took "an unreasonable settlement position" and "tried to repudiate the Property Settlement Agreement with no evidence." Judge Torack further found she "chose to drag [the litigation] out, procrastinate, litigate, try to hold up [her former husband] for money." He concluded that wife had the ability to pay, disbelieving her contention that she earned only $2,500 a year, as she owned her own cash business. He balanced the equities and awarded husband a partial fee. We perceive no basis to second-guess this discretionary ruling.

Affirmed.

 

The judge also entered an order on January 21, 2005 denying wife's motion to modify the judgment of divorce and awarding husband an additional $750 in counsel fees.

Although the agreement is dated October 8, some portions of the transcript claim it was actually signed on October 7, 2003.

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A-2983-04T1

May 23, 2006