October 14, 2009
VIVIAN QIAN, PLAINTIFF-RESPONDENT, CROSS-APPELLANT,
WILLIAM WANG, DEFENDANT-APPELLANT, CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-421-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2009
Before Judges Reisner and Yannotti.
Defendant William Wang appeals from a October 21, 2008 final judgment of divorce insofar as it orders him to pay child support. Plaintiff Vivian Qian cross-appeals from another portion of the same judgment, awarding her $75,000 "off the top" from the sale of the marital home instead of from defendant's share of the sale price. We affirm the award of child support. We modify the $75,000 judgment to provide that it shall be deducted from defendant's share of the sale proceeds.
The facts are reviewed in detail in the trial judge's thirty-four page written opinion dated October 31, 2008. We summarize them briefly here. The parties were married in China in May 1993. Defendant, an American citizen, returned to the United States, and plaintiff, then a citizen of China, followed him here in December 1993. Plaintiff returned to China for two months, starting in February 1994, to visit her family and attend to some business interests. She rejoined defendant in the United States on April 15, 1994, and discovered she was pregnant shortly after her return.*fn1 The child was born in late December 1994. There is no dispute that defendant is not the child's biological father. However, despite having some doubts about paternity, defendant did not pursue DNA testing until April 2006, after the parties and their child had been living as a family for over a decade.
Following a bench trial, the judge credited plaintiff's testimony that she had believed defendant was the child's father until the DNA test revealed otherwise. The judge also found that defendant had initial suspicions about paternity but failed to pursue them. The judge concluded that plaintiff did not defraud defendant about the child's paternity.
In a cogent written opinion, the judge concluded that defendant should be required to pay child support, based on these factors: defendant failed to seek genetic testing immediately after the child's birth despite suspicions about paternity; his conduct induced plaintiff and the child to establish permanent residency here instead of moving back to China; he had provided all of the child's economic support since birth; defendant's conduct induced plaintiff not to seek the child's biological father in China; there was now no realistic possibility of finding the biological father or of obtaining support from him; and defendant was the child's psychological parent.
We begin by addressing defendant's appeal of the child support award. Our review of the trial court's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We owe particular deference to the judge's factual findings following a plenary hearing, because she had a firsthand opportunity to judge the credibility of the witnesses. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Twp. of West Windsor v. Nierenberg, 150 N.J. 111, 132 (1997).
"[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963). And we owe special deference to decisions of the Family Part in light of its expertise. Cesare, supra, 154 N.J. at 413.
Having reviewed the record, we find no basis to disturb the judge's factual findings, which are supported by substantial credible evidence. In light of those factual determinations, the judge's legal conclusions were entirely consistent with the applicable law. Defendant's arguments to the contrary are without merit, Rule 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in the trial judge's cogent written opinion. We add the following comments.
We agree with the trial judge that if defendant had doubts about paternity, which he admittedly did, he should have pursued the issue when his doubts arose. Instead, he waited more than a decade, raising the child as his own, inducing plaintiff and the child to become economically dependent on him, and becoming the child's psychological parent. Due to the passage of time, there is no realistic possibility of finding the child's biological father or of obtaining economic support from him. Accordingly, we affirm the judgment awarding child support. See Miller v. Miller, 97 N.J. 154, 167-68 (1984); Ross v. Ross, 126 N.J. Super. 394, 398-99 (J.D.R. Ct. 1973), aff'd o.b., 135 N.J. Super. 35 (1975); Monmouth County Div. of Social Services v. R.K., 334 N.J. Super. 177, 195-96 (Ch. Div. 2000).
Turning to the cross-appeal, the trial judge ordered that the marital home be sold, that the first $75,000 of the proceeds be given to plaintiff, and that the remainder be split 60-40 between defendant and plaintiff. We conclude this order must be modified.
At the trial, defendant admitted that after he knew the parties would be divorcing, he took out a $150,000 home equity line of credit on the marital residence without plaintiff's knowledge and used the loan proceeds for his own purposes. In answer to a cross-examination question, defendant agreed that it was his "position" that when the house was sold, $75,000 should go to plaintiff "off the top." However, in response to his counsel's re-direct questioning, defendant also candidly "acknowledged that half of that money that [defendant] took out belongs to [plaintiff] and is going to be resolved when the house is sold."
We find no merit in defendant's argument that plaintiff's share should be reduced by funds she allegedly wrongfully took. The trial judge concluded that defendant did not prove that allegation, and we find nothing in this record to warrant disturbing the judge's finding. R. 2:11-3(e)(1)(A).
Plaintiff is entitled to $75,000, representing one-half of the $150,000 that defendant improperly appropriated. Giving her the $75,000 "off the top" will not produce that result. The net sale proceeds should be split 60-40 first and then the $75,000 should be taken out of defendant's share and given to plaintiff. Accordingly, we remand for the limited purpose of entering a modified judgment consistent with this opinion.
Affirmed in part, modified and remanded in part.