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Nie v. Zi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 court address Nie's alleged failure to utilize the marital home for the benefit of their daughter. The trial court denied that request.

On appeal, Zi raises the following issues for our consideration:

POINT I: THE COURT'S DECISION THAT THE PLAINTIFF IS ENTITLED TO $35,000.00 FROM THE SALE OF PROPERTY IN FLORIDA WAS IN ERROR.

POINT II: THE PROPERTY SETTLEMENT AGREEMENT SHOULD BE REFORMED AS A RESULT OF SAME HAVING BEEN SIGNED UNDER DURESS AND AS A RESULT OF THE CLEAR UNCONSCIONABLE TERMS CONTAINED THEREIN.

POINT III: THE TRIAL COURT ERRED IN CHANGING ITS RULING ON FEBRUARY 2ND, 2007 FROM ITS RULING ON JANUARY 5TH, 2007 WITH RESPECT TO THE ISSUE OF PLAINTIFF'S USE OF JOINT MARITAL FUNDS.

POINT IV: THE AWARDING OF FEES TO PLAINTIFF'S COUNSEL SHOULD BE REVERSED.

Our evaluation of a PSA is governed by our general principles of contract interpretation:

Courts recognize property settlement agreements as "fall[ing] within the category of contracts enforceable in equity." Petersen v. Petersen, 85 N.J. 638, 642. Consistent with familiar canons of construction, the words of an agreement are given their "ordinary" meaning. Shadow Lake Vill. Condo. Ass'n v. Zampella, 238 N.J. Super. 132, 139 (App. Div. 1990). "In interpreting a contract, [i]t is not the real intent but the intent expressed or apparent in the writing that controls." Garfinkel v. Morristown Obstetrics and Gynecology Assocs., 168 N.J. 124, 135 (2001) (internal citations and quotation marks omitted) (alteration in original). [Flanigan v. Munsun, 175 N.J. 597, 606 (2003).]

"Generally, [a court] determine[s] a written agreement's validity by considering the intentions of the parties as reflected in the four corners of the written instrument." Leodori v. Cigna Corp., 175 N.J. 293, 302, cert. denied, 540 U.S. 938, 129 S.Ct. 74, 157 L.Ed. 2d 250 (2003). "[I]t is not the function of the court to make a better contract for the parties, or to supply terms that have not been agreed upon." Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).

In the present case, the parties' PSA does not specifically address the disposition of the Florida real estate and there is no proof in the record of any agreement that Zi was to enjoy sole ownership of that property. In fact, the names of both parties appear on the April 2005 deed for the sale of the land and on the May 2005 Satisfaction of Mortgage.*fn2 From our review of the record, the Florida real estate appears to have been owned jointly by Zi and Nie. Therefore, Zi could not dispose of the property in accordance with Paragraph 12 of the PSA, as if it was his own. The Florida real estate was not "his" property; it was their property. Thus, the trial court properly determined that Nie is entitled to share the proceeds of the sale.

As an alternative to his claim to exclusive benefit of the proceeds of the Florida property, Zi contends the trial court's calculation of the proceeds to which Nie is entitled was flawed. Zi asserts that he only received proceeds of $59,654.88 and that amount was further reduced by capital gains taxes and his maintenance of the property following the divorce. Thus, Zi argues that Nie is at most entitled to one half of the net proceeds of the sale of the Florida real estate. It is unclear why the trial court awarded Nie $35,000, one half of the contract sales price reflected in the Housing and Urban Development settlement statement. Accordingly, we remand to the trial court for a determination of the adjustments, if any, to be taken before disbursement of the net sum to the sellers.

Furthermore, Zi asks us to re-evaluate the PSA as a whole because many issues were never reduced to writing. We discern no basis for us to grant such an extraordinary request. Once again, "it is not the function of the court to make a better contract for the parties, or to supply terms that have not been agreed upon." Graziano, supra, 326 N.J. Super. at 342. Moreover, New Jersey public policy favors the enforcement of PSAs which are fair and just. See Peterson, supra, 85 N.J. at 642.

Zi next argues that the PSA should be set aside because he signed it under duress. It is Zi's contention that he would not have signed the PSA except for Nie's threat that, unless he signed the PSA, she would not bring back their daughter, who was then residing in China against Zi's wishes. The only evidence of duress produced is a statement made by Zi. The trial court determined that this was not credible and we are bound by that determination. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 (1974); State v. Locurto, 157 N.J. 463, 470-72 (1999); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Accordingly, this argument does not warrant any further written consideration. R. 2:11-3(e)(1)(E).

Next, Zi asserts that the trial court's order dated February 2, 2007 erroneously changed or vacated its previous order of January 5, 2007. Our understanding is that the February 2 order did not vacate Paragraph 11 of the January 5 order; rather, it merely denied the request in Zi's motion for reconsideration that Nie repay him certain funds taken within seven days of the reconsideration order instead of thirty days. The thirty days had not passed by the time of the February 2 order. The court did not alter or disturb the January 5 order. We believe any other interpretation of the February 2 order is misplaced.

Finally, Zi contends that the trial court erroneously awarded Nie counsel fees. We agree. In light of our ruling that Nie is entitled to half of the net proceeds, rather than half of the gross proceeds of the sale of the Florida real estate, attorney's fees are not warranted. We find that Zi's motion for reconsideration was in good faith and was an attempt to determine the proper amount of equity derived from the sale of the Florida home so that if there were to be an equitable distribution, it would be based on the correct amount of net proceeds from the sale. See R. 5:3-5(c); R. 5:3-7. Accordingly, that portion of the trial court's order is reversed.

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


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