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Nie v. Zi

July 22, 2008

HONG NIE, PLAINTIFF-RESPONDENT,
v.
YANG ZI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-573-04H.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 16, 2008

Before Judges R. B. Coleman and Lyons.

Defendant Yang Zi appeals from a January 5, 2007 order of the Chancery Division, Family Part, Middlesex County, entered on a post-judgment matrimonial motion, as well as an order dated February 2, 2007, denying defendant's motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, and reverse and remand in part.*fn1

The relevant facts and procedural history are as follows. Zi and his ex-wife, plaintiff Hong Nie, were divorced on November 14, 2003. In November 2006, Zi filed a motion seeking a warrant for the arrest of Nie and various other forms of relief in connection with the Judgment of Divorce. Nie responded and filed a cross-motion, alleging among other things, that Zi had sold jointly-owned real estate located in Florida and that he had not provided her with the half of the proceeds to which she was entitled. Zi replied to Nie's cross-motion, and on January 5, 2007, the court issued an extensive order containing thirty-one numbered paragraphs, some of which numbered paragraphs contained multiple subparagraphs granting or denying specific requests made by the parties. Paragraph 30 of the order granted Nie's request that the court require Zi to pay Nie $35,000, her share of the gross proceeds from the sale of the Florida real estate.

On January 12, 2007, Zi filed a motion for reconsideration. Nie opposed the motion for reconsideration and cross-moved for attorneys' fees. On January 30, 2007, Zi filed a revised motion for reconsideration based on allegedly new evidence. On February 2, 2007, the court denied Zi's motion for reconsideration and granted Nie's motion for fees. Zi now appeals.

When the parties were divorced in November 2003, they entered into a Property Settlement Agreement (PSA) that was incorporated into the Judgment of Divorce. The PSA, drafted by Nie's counsel, contained the following provisions that are relevant to this appeal:

7. The parties shall continue to jointly own the joint property located at 3903 Cricket Circle, Edison, NJ 08820. Husband shall pay the mortgage for one year after the divorce. If the house is sold after the one year, each party shall share the equity equally; if it cannot be sold within that one year, both parties shall share the mortgage equally. The property may be transferred to Wife, in which case Wife shall be solely responsible for the mortgage payments.

8. Each party is entitled to whatever personal property is his/her possession.

12. Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationships, including, without limitation, dower, courtesy . . . .

Within one year of their divorce, the parties sold the marital home and received proceeds in the amount of $88,000. Nie's counsel from the divorce represented the parties in the sale of the marital home. Zi maintains in his brief, without citation to the record, that the parties agreed that each would receive $34,000 and the remaining $20,000 would be held in escrow by Nie's attorney. Zi further asserts, that the escrowed funds were ultimately released pursuant to an oral agreement that it would be used in lieu of child support. Zi notes that Nie filed a motion for child support despite the alleged oral agreement.

In April 2005, Zi sold a piece of jointly owned real property located in Flagler County, Florida. Zi contends in his brief that it was understood between the parties at the time of the divorce that he would retain ownership of the Florida property and Nie would retain ownership of other property not referred to specifically in the PSA. Thus, Zi contends that when he sold the Florida property, he disposed of property belonging to him, in accordance with Paragraph 12 of the PSA.

Also, Zi claims that he is entitled to reimbursement from the proceeds of the sale of the marital home before Nie may take any share of the proceeds of the sale of the Florida home. Zi alleges that this amount is approximately $20,000. More specifically, he contends that he is entitled to carrying charges, such as the mortgage, tax and insurance, that he paid for the home subsequent to their divorce, while Nie alone resided in the home, without their daughter who was in China. Zi had requested that the trial ...


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