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Zhong v. Ye

October 14, 2010

QIAN ZHONG, PLAINTIFF-RESPONDENT,
v.
XUE YE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1461-04C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2010

Before Judges Wefing, Baxter and Koblitz.

Defendant mother Xue Ye appeals from two post-judgment orders of October 30, 2009. The first denied her motion to reconsider the court's August 28, 2009, order permitting discovery of financial records from 2005 through 2008 from her landscaping business, Calymon Sitework, LLC (Calymon) and modifying the shared parenting time provision in the parties' Property Settlement Agreement (PSA) from every weekend to alternate Thursday through Sunday evenings. The second order denied her motion to enforce the court's July 2, 2009, order requiring reimbursement of unpaid medical expenses as well as denying her motion for counsel fees and costs in connection with this enforcement application. After reviewing the record in light of the contentions advanced on appeal, we affirm the order permitting discovery and modifying parenting time and remand the issue of plaintiff's nonpayment of medical expenses and related counsel fees to the trial court to allow it an opportunity to expand on its reasons for this order.

The parties were married in 1990 and had two children. The parties were divorced on June 17, 2005, pursuant to a dual final judgment of divorce incorporating a written PSA. Their daughter had special needs and passed away within six months of their divorce. Their nine-year-old son is also a child with special needs, requiring full-time care.

The PSA provided that the parties would have joint legal custody of the two children, with defendant maintaining primary residential custody. Plaintiff's parenting time included alternate Friday through Sunday evenings, alternate Sunday through Monday mornings, and alternate holidays. Thus, plaintiff father took care of his children either one or two overnights every week. When plaintiff's job required overseas travel, he was required to give defendant at least two weeks advance notice. Moreover, plaintiff was required to "show proof of necessity of an oversea[s] trip upon . . . [defendant's] request." After the divorce, plaintiff obtained a job with Tyco, which he claimed required frequent travel to Asia.

Article V of the PSA addressed alimony. The record contains two different versions of Article V. Defendant's version provided, in pertinent part:

5.2 The parties acknowledge that permanent alimony is being acknowledges [sic] that the wife's earning power is reduced and her potential earning ability is jeopardized due to responsibility of childcare for all of these years. In the event that the wife is able to work, the amount of alimony may not be modified unless her income exceeds the additional childcare expenses.

In contrast, plaintiff's version included the following underlined additions:

5.2 The parties acknowledge that permanent alimony is being agreed to in this case because there is a need for the Wife to care for the parties' children with special needs on a full-time basis. It is acknowledged that she cannot work outside the home presently because of the pressing needs of the children. The Wife acknowledges that she has a Masters Degree in Landscape Architecture and has earned income in her field in the past. The husband agreed to in this case [sic] because there is a need for the Wife to care for the parties' children with special needs on a full-time basis. . . . The husband acknowledges that the wife's earning power is reduced and her potential earning ability is jeopardized due to responsibility of childcare for all of these years. In the event that the wife is able to work, the amount of alimony may not be modified unless her income exceeds the additional childcare expenses incurred.

Both written versions of the PSA were signed by both parties. The parties clearly anticipated that caring for two children with special needs would prevent defendant from earning a living, necessitating permanent alimony.

Article X of the PSA provided for a split of the children's medical expenses between the parties, fifty-five percent plaintiff, forty-five percent defendant. In the event that either party advanced medical expenses, the other party was required to reimburse ...


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