QIAN ZHONG v. XUE YE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1429-09T3

QIAN ZHONG,

Plaintiff-Respondent,

v.

XUE YE,

Defendant-Appellant.

________________________________________________________________

October 14, 2010

 

Submitted September 21, 2010 - Decided

 

Before Judges Wefing, Baxter and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1461-04C.

 

Stein Simpson & Rosen, P.A., attorneys for appellant (Nancy S. Simpson, on the brief).

 

Qian Zhong, respondent pro se.

PER CURIAM

Defendant mother Xue Ye appeals from two post-judgment orders of October 30, 2009. The first denied her motion to reconsider the court's August 28, 2009, order permitting discovery of financial records from 2005 through 2008 from her landscaping business, Calymon Sitework, LLC (Calymon) and modifying the shared parenting time provision in the parties' Property Settlement Agreement (PSA) from every weekend to alternate Thursday through Sunday evenings. The second order denied her motion to enforce the court's July 2, 2009, order requiring reimbursement of unpaid medical expenses as well as denying her motion for counsel fees and costs in connection with this enforcement application. After reviewing the record in light of the contentions advanced on appeal, we affirm the order permitting discovery and modifying parenting time and remand the issue of plaintiff's nonpayment of medical expenses and related counsel fees to the trial court to allow it an opportunity to expand on its reasons for this order.

The parties were married in 1990 and had two children. The parties were divorced on June 17, 2005, pursuant to a dual final judgment of divorce incorporating a written PSA. Their daughter had special needs and passed away within six months of their divorce. Their nine-year-old son is also a child with special needs, requiring full-time care.

The PSA provided that the parties would have joint legal custody of the two children, with defendant maintaining primary residential custody. Plaintiff's parenting time included alternate Friday through Sunday evenings, alternate Sunday through Monday mornings, and alternate holidays. Thus, plaintiff father took care of his children either one or two overnights every week. When plaintiff's job required overseas travel, he was required to give defendant at least two weeks advance notice. Moreover, plaintiff was required to "show proof of necessity of an oversea[s] trip upon . . . [defendant's] request." After the divorce, plaintiff obtained a job with Tyco, which he claimed required frequent travel to Asia.

Article V of the PSA addressed alimony. The record contains two different versions of Article V. Defendant's version provided, in pertinent part:

5.2 The parties acknowledge that permanent alimony is being acknowledges [sic] that the wife's earning power is reduced and her potential earning ability is jeopardized due to responsibility of childcare for all of these years. In the event that the wife is able to work, the amount of alimony may not be modified unless her income exceeds the additional childcare expenses.

 

In contrast, plaintiff's version included the following underlined additions:

5.2 The parties acknowledge that permanent alimony is being agreed to in this case because there is a need for the Wife to care for the parties' children with special needs on a full-time basis. It is acknowledged that she cannot work outside the home presently because of the pressing needs of the children. The Wife acknowledges that she has a Masters Degree in Landscape Architecture and has earned income in her field in the past. The husband agreed to in this case [sic] because there is a need for the Wife to care for the parties' children with special needs on a full-time basis. . . . The husband acknowledges that the wife's earning power is reduced and her potential earning ability is jeopardized due to responsibility of childcare for all of these years. In the event that the wife is able to work, the amount of alimony may not be modified unless her income exceeds the additional childcare expenses incurred.

 

Both written versions of the PSA were signed by both parties. The parties clearly anticipated that caring for two children with special needs would prevent defendant from earning a living, necessitating permanent alimony.

Article X of the PSA provided for a split of the children's medical expenses between the parties, fifty-five percent plaintiff, forty-five percent defendant. In the event that either party advanced medical expenses, the other party was required to reimburse the advancing party upon receipt of the incurred medical expenses.

Defendant raises the following points on appeal:

POINT I RECONSIDERATION OF THE COURT'S ORDER OF AUGUST, 28, 2009 WAS REQUIRED.

 

POINT II PLAINTIFF HAS FAILED TO COMPLY WITH THE RULES OF PRACTICE FOR MODIFICATION OF FAMILY COURT ORDERS.

 

POINT III THE COURT ERRED IN FAILING TO DIRECT A PLENARY HEARING TO RESOLVE THE ISSUES RAISED BY CONFLICTING CERTIFICATIONS.

 

POINT IV PARAGRAPH 1 OF THE ORDER OF AUGUST 28, 2009 THEREOF IS BARRED BY LAW OF THE CASE.

I

Defendant contends that the court erred by denying her motion for reconsideration of the court's order compelling production of financial records relating to her business because: (1) the court relied upon inadmissible hearsay evidence in concluding that plaintiff demonstrated a prima facie showing of a change in defendant's circumstances; (2) plaintiff failed to append the necessary documentation to his motion to modify permanent alimony and child support in contravention of Rule 5:5-4; and (3) the law of the case doctrine precluded discovery since plaintiff sought production of Calymon's financial records and modification of alimony and child support in prior motions that were rejected by the court. Defendant further argues that she should have been afforded a plenary hearing on the issue of whether plaintiff provided adequate prima facie proof of her changed circumstances to warrant discovery of Calymon's financial records.

A motion for reconsideration pursuant to Rule 4:49-2 should be granted only where "(l) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied, 174 N.J. 544 (2002). The denial of a motion for reconsideration is reviewed for an abuse of discretion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A trial court's determinations regarding discovery also are reviewed for an abuse of discretion. Pressler & Verniero, Current N.J. Court Rules, comment 4.5 on R. 2:10-2 (2011); see Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005), certif. denied, 185 N.J. 296 (2005) (stating that "generally, [the appellate court will] defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law").

The PSA allows for the modification of alimony and child support under specified circumstances. Regarding alimony, if defendant works, alimony is modified only if "her income exceeds the additional childcare expenses." Child support "may be modified in the event the level of childcare is increased and [defendant's] health and physical conditions change."

Moreover, alimony and child support may be modified by a court upon a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). An increase in a supporting spouse's income is considered a changed circumstance. Ibid.

"The moving party has the burden of establishing a prima facie case of changed circumstances before discovery of the opposing spouse's finances will be ordered." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). "By prima facie is meant evidence that, if unrebutted, would sustain a judgment in the proponent's favor." Baures v. Lewis, 167 N.J. 91, 118 (2001). Stamberg further explains:

Whether or not a party has experienced changed circumstances derives from a comparison of the parties' economic life during the marriage with the present economic conditions. In assessing whether a change has occurred in a case involving an economically dependent spouse, the considerations are 'the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard.'

 

[302 N.J. Super. at 42 (quoting Lepis, supra, 83 N.J. at 152)]

 

Defendant first contends that the court erred in ordering discovery of Calymon's financial records because plaintiff proffered inadmissible hearsay evidence to show a change in defendant's circumstances.

The court stated that it relied upon documents appended to plaintiff's motion in concluding that he showed prima facie proof of a change in defendant's circumstances:

Based on the documents appended to Plaintiff's motion, it appears that Defendant may have received payments on business contracts through Calymon. If Defendant is still operating Calymon as a for profit business, she is clearly violating the terms of the . . . [PSA] which mandates that she does not work in order to carefor [theirson]. Giventhe discrepanciesin Defendant spast andpresent Certifications as to her involvement with Calymon and whether she earns income from Calymon, Defendant is ordered to provide copies of all financial records . . . .

 

Hearsay is defined as a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. N.J.R.E. 801(c). A statement is an oral or written assertion. N.J.R.E. 801(a)(1). "Hearsay is not admissible except as provided by [the Rules of Evidence] or by other law." N.J.R.E. 802. Although plaintiff did proffer certain hearsay documents such as unsigned letters in support of his claim that Calymon is now profitable, defendant herself admitted receiving payments, although contending that she worked for friends and family, not for profit, but for "emotional release and social stability." Plaintiff submitted sufficient admissible evidence showing a possible change in circumstances to support the trial court's discretionary decision to allow discovery of Calymon's records.

Defendant next contends that the court erred by denying her motion for reconsideration of the court's order compelling production of Calymon's financial records because plaintiff did not append required documents to his motion for a modification of permanent alimony and child support. He did not attach a copy of the PSA, the court's prior order of January 18, 2008, and a prior and current case information statement as required by Rule 5:5-4. The failure to attach these documents is not harmful here. The trial court was fully familiar with this matter, having handled many prior motions. If, after discovery, the trial court concludes that a plenary hearing is necessary, then the parties will be required to update their financial disclosure statements.

Defendant next argues that the court erred in ordering discovery of Calymon's financial records because it denied two of plaintiff's prior similar requests, on September 28, 2007, and January 18, 2008. The court, in rejecting defendant's argument on her motion for reconsideration here, stated that the law of the case doctrine "would require a degree of staticness [sic] which in reality never can occur particularly in a post- judgment dissolution case where the dynamics of a change in circumstances is always a potential. .. ." We agree. Plaintiff amassed sufficient evidence by this application to convince the court, in its discretion, to allow discovery.

The trial court also properly exercised its discretion in allowing financial discovery without a plenary hearing. If the discovery yields sufficient evidence of a change in circumstances, a plenary hearing may then become necessary. "[N]ot every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995), certif. denied, 142 N.J. 455 (1995); see also Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) (Plenary hearings on every post-judgment application would "impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants.").

II.

Defendant contends that the court erred by denying her motion for reconsideration of the court's order modifying the shared parenting time provision in the PSA because no plenary hearing was conducted prior to the modification. In its decision, the trial court changed the plaintiff's parenting time from every week to every other week to accommodate plaintiff's frequent travel to Asia. At the time of the PSA, defendant had to care for the parties' two children with special needs. Plaintiff supported defendant and their two children. Now defendant must care for their remaining child, with nursing assistance, while plaintiff remains their sole support. He maintains that he can not travel extensively in Asia as required by his job, work productively, and take care of his son on a weekly basis.

In August 2007, the trial court found the death of the parties' daughter relieved defendant of some of her caretaking responsibilities and represented a changed circumstance which should allow plaintiff more flexibility in the parenting time schedule to accommodate his work needs. The judge ordered the parties to attend mediation to work out a new schedule. Here, the court granted plaintiff's request to modify the parenting time schedule stating:

The Court previously held that there was [a] changed circumstance that warrants a modification of the parenting time schedule. Therefore, there is no need to revisit the provision of the . . . [PSA] that states that [p]laintiff 'should make every effort to avoid overseas trip[s] that interfere[] with his parenting time obligation.' In 2007, the Court ordered the parties to mediate the revision of the parenting time schedule of the PSA because it was inequitable. However, the parties could not agree on a proposed consent order as to the revised parenting time schedule. Plaintiff's employment with Tyco requires frequent business trips overseas, which impinges on his parenting time with [his son]. Though [d]efendant alleges that [p]laintiff's trips are often related to his personal business, she does not support her argument with any documentation. Defendant is clearly being unreasonable in her objections to modifying the parenting time schedule . . . . [Plaintiff's] proposed schedule is granted as it will allow [p]laintiff to exercise his parenting time with [his son] while fulfilling his obligations to his employer.

 

Defendant complains that plaintiff has missed parenting time in the past and that she needs the respite his parenting time provides on a weekly basis.

The trial court has heard voluminous motions from these litigants since at least May 2007. With the exception of these motions for reconsideration and enforcement where defendant had counsel, the parties represented themselves before the court. The trial court's findings of fact are binding on the Appellate Division "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We find that the trial judge exercised his discretion appropriately in these matters, having acquired the "feel of the case." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261 (2007).

III.

Finally, defendant contends that the court erred in not granting her motion to enforce litigant's rights. She sought enforcement of the court's July 2, 2009, order requiring plaintiff to reimburse her for unpaid medical expenses. Specifically, the parties agreed that the original amount owed to defendant was $5,294.54, of which plaintiff had paid defendant $1,214.23, leaving a balance of $4,080.31. Defendant contends that $4,080.31 is still due and owing, while plaintiff asserts in his brief, without citation to the record, that the amount owed "was fully satisfied." The court denied this motion stating it was "satisfied that there is no open balance that is due." The court also determined that counsel fees were not warranted "because there are no monies for unpaid medical expenses that are due and owing." We remand on this issue only for an expanded fact-finding to allow appellate review. See R. 1:7-4; Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008). If the trial court chooses to reconsider this decision and decides plaintiff does owe unpaid medical expenses, "[t]he court in its discretion may make an allowance for counsel fees . . . ." R. 1:10-3.

Affirmed in part and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.