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Chen v. Chao

July 2, 2007

SUEMAN CHEN (F/K/A SUEMAN CHAO), PLAINTIFF-RESPONDENT,
v.
JOSEPH CHAO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2609-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically May 25, 2007

Before Judges Payne and Graves.

On December 15, 2003, after being married for more than twenty years, the parties signed a property settlement agreement (PSA), and they were divorced the same day. Defendant Joseph Chao appeals from an order dated February 16, 2006, awarding counsel fees to plaintiff in the amount of $3,500 and denying his request for an order directing plaintiff (1) to pay him the sum of $31,753, representing monies he paid to plaintiff pursuant to an order dated April 26, 2005, (2) to pay him directly or to transfer from plaintiff's 401(k) plan to defendant's 401(k) plan, the sum of $6,342.68, (3) to pay him the sum of $13,100 for "overpayment of child support," (4) to deliver a fully executed deed for a Keansburg investment property, (5) to deliver "documentation evidencing the children's education trust fund has been set up to include [defendant's sister] as a co-trustee," and (6) to pay "reasonable counsel fees and costs" incurred by defendant. We affirm the denial of defendant's request to vacate the order dated April 26, 2005, but we reverse and remand the remaining issues for reconsideration.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN REFUSING TO SET ASIDE THE APRIL 26, 2006 ORDER DIRECTING THE DEFENDANT TO PAY THE PLAINTIFF $6,000.00 AND DIRECTING THE PARTIES TO EQUALLY DIVIDE THE "REMAINING BALANCE" OF THE ESCROW ACCOUNT[.]

A. THE LANGUAGE IN THE ORDER DIRECTING THE BALANCE REMAINING IN THE TRUST ACCOUNT TO BE EQUALLY DIVIDED AND DISTRIBUTED WAS BASED UPON A MISTAKE WHICH, IF LEFT UNCORRECTED, GRANTS A SUBSTANTIAL WINDFALL TO THE PLAINTIFF AT THE DEFENDANT'S EXPENSE.

B. DEFENDANT SHOULD BE RELIEVED FROM THE PORTION OF THE APRIL 26, 2005 ORDER ORDERING $6,000.00 TO BE PAID TO THE PLAINTIFF FROM THE ESCROWED FUNDS BASED UPON R. 4:50-1(c).

C. DEFENDANT SHOULD BE RELIEVED FROM THE ORDER DIRECTING $6,000.00 AND THE BALANCE OF THE PROCEEDS TO BE PAID TO THE PLAINTIFF FROM THE ESCROWED FUNDS BASED UPON R. 4:50-1(f).

POINT II

THE TRIAL COURT ERRED IN REFUSING TO FIND PLAINTIFF IN VIOLATION OF LITIGANT'S RIGHTS AND ENFORCE THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.

A. THE TRIAL COURT ERRED IN REFUSING TO FIND PLAINTIFF IN VIOLATION OF LITIGANT'S RIGHTS AND ENFORCE ARTICLE IV, PARAGRAPH A OF THE ...


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