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Chen v. Chen

October 15, 2008

TIMOTHY CHEN, PLAINTIFF-RESPONDENT,
v.
MEI-IN CHEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1476-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2008

Before Judges Parrillo, Lihotz and Messano.

In this post-divorce judgment action, defendant Mei-in Chen appeals from a November 16, 2007 order of the Family Part awarding primary residential custody of the parties' then nine-year-old daughter K. to her former husband, plaintiff Timothy Chen, and fixing her monthly child support obligation at $91. We affirm.

By way of background, both parties were born in Taiwan and emigrated separately to the United States, where they were introduced to each other by their parents. They married on July 21, 1990 in New York, and K., their only child, was born on May 9, 1998. Shortly thereafter, in 2000, the parties separated after plaintiff, a radiation oncologist, began an intimate relationship and fathered a child (born on March 9, 2002) with a nurse practitioner, whom he later married on May 27, 2005.

The parties divorced by final judgment entered in New York State Supreme Court on May 19, 2005, which incorporated a property settlement agreement (PSA) providing for joint legal custody and designating defendant the parent of primary residence. Plaintiff was afforded liberal visitation, detailed in "Schedule A" of the PSA.

The final judgment of divorce (FJD) also permitted defendant to relocate to New Jersey where her parents resided. In fact, the PSA obligated the parties to immediately notify the other of any change in mailing address or actual place of residence; and upon defendant only, to sell the New York marital residence by July 1, 2005 and relocate to within 30 miles of Whippany, New Jersey. In anticipation of defendant's move, plaintiff moved to New Jersey in October 2003, having obtained employment with a medical practice that maintained a contractual relationship with Morristown Memorial Hospital, and subsequently successfully moved to domesticate the foreign FJD. Defendant eventually relocated to New Jersey over Labor Day weekend, 2005, without, however, first advising plaintiff of the move.

Since their separation, the parties have had a difficult and tumultuous relationship. There was an incident at the former marital residence on January 15, 2003, which resulted in a January 23, 2003 order of protection against plaintiff in New York, restraining him from the home other than for court-authorized visitation with his daughter at curbside. Apparently, following a dispute over a car seat during an exchange of their daughter, plaintiff drove his car across the lawn in the direction of defendant as she was walking to her front door.

As further evidence of marital discord, throughout the time defendant enjoyed primary residential custody of K., she rigidly adhered to the parenting schedule annexed to the parties' PSA, allowing him no additional parenting time, and demonstrating no flexibility in the arrangement. In fact, on one occasion, plaintiff arrived a few minutes early; however, defendant refused to permit the visitation to commence until the exact minute specified in the parenting schedule.

As noted, plaintiff was not made aware of defendant's move to New Jersey over Labor Day weekend, 2005. Plaintiff, who was parenting K. that weekend, actually returned his daughter to defendant's New York residence even though she had temporarily moved to her parents' home in Whippany the Sunday before Labor Day. Defendant did not inform plaintiff of her presence in Whippany until October 2005, before permanently moving to Denville in November 2005 into a house she had purchased on September 18, 2005. In the meantime, however, plaintiff had learned of defendant's move to New Jersey. When speaking to K. the day after Labor Day, K. spelled the name of her new school, apparently believing this would not disobey her mother's directive not to tell her father she had moved.

During a subsequent exchange of their daughter on April 20, 2006, there was another incident of domestic violence, this time perpetrated by defendant. According to plaintiff, while returning K. home, he commented that he would see her the next day, whereupon defendant became angry and began yelling. When plaintiff reached into defendant's car, which was running, to give K. a hug goodbye, defendant put the car in drive, and proceeded to move forward, running over plaintiff's foot and dragging him approximately four to five feet while plaintiff was banging on the window for defendant to stop. K., who witnessed the entire incident, was crying. Upon plaintiff's May 8, 2006 complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, a temporary restraining order was issued wherein custody of K. was temporarily transferred to plaintiff.

At the close of evidence, the trial judge found defendant's actions of releasing the brake, placing the car in gear and dragging plaintiff several feet constituted an act of domestic violence and consequently entered a final restraining order, continuing primary residential custody with plaintiff pending a full custody evaluation and hearing. In the course of so ruling, the judge found defendant had a history of hostility toward plaintiff, including leaving harassing voice mail messages on plaintiff's phone, throwing a piggy bank at him, and issuing a vague ...


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