On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2209-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Baxter.
Plaintiff Douglas Q. Luong appeals from an October 14, 2009 Law Division order which, following a proof hearing on liability and damages, dismissed his complaint with prejudice because he failed to prove the elements of his claims. We agree with plaintiff's contention that the judge erred by imposing a heavier burden of proof than required at a proof hearing, and therefore remand for reconsideration of the dismissal in light of the proper burden of proof. Our remand is, however, limited to plaintiff's claims against his former wife, as we are satisfied that the dismissal of Douglas's claims against his exwife's aunt and uncle was appropriate. On remand, the judge should determine the legal issue raised at the proof hearing, but not decided: whether plaintiff's waiver of all damages claims in the property settlement agreement (PSA) at the time of his divorce bars him from instituting this separate action against his former wife for damages in tort.
In the spring of 2002, plaintiff frequented a grocery store in Edison where he met defendant Loan Thikieu Nguyen, who worked there as a cashier. Loan was the aunt of defendant Kieu H. Nguyen. Loan told plaintiff, who was then thirty-two years old and unmarried, that her niece, Kieu, who lived in Vietnam, would be a "very good wife" for him. Plaintiff began telephoning Kieu in Vietnam while Loan and her husband, Thanh, also a defendant, continued to encourage plaintiff's interest in their niece.
Plaintiff called Kieu in Vietnam three to four times a week in the summer of 2002 and visited her in Vietnam. Although they discussed the possibility of getting married, no plans were made. Plaintiff returned to New Jersey and continued to call Kieu several times a week. During those phone calls, she requested that he send her money, which he did, wiring her approximately $200 per week.
In the summer of 2004, Kieu agreed to marry plaintiff. He flew to Vietnam, where the ceremony was performed. Kieu did not immediately return to New Jersey with plaintiff because he had been living in a very small apartment with his brother and sister, and Kieu wanted him to find more suitable accommodations before she moved to New Jersey.
Immediately after plaintiff and Kieu were married, she asked him to begin the application process for her green card. She also demanded that he continue to send her money. According to plaintiff, he sent Kieu approximately $10,000 after they were married and while she was still living in Vietnam.
After nearly two years, Kieu finally agreed to move to New Jersey to live with plaintiff, arriving at Newark Airport on February 19, 2006 accompanied by her aunt and uncle. Until the day Kieu flew to New Jersey in February 2006, the relationship between plaintiff and Kieu was, according to him, "still very good." As soon as he saw her at the airport, however, he could see that Kieu was "act[ing] totally differently. . . . [H]er face looked so different, upset, angry at me." Kieu lived with her aunt and uncle until May 1, 2006 when plaintiff and Kieu moved to their own apartment in Piscataway. In April 2006, approximately one month before they moved to the apartment, the green card for which plaintiff had applied arrived in the mail, and he gave it to Kieu.
According to plaintiff, immediately after she moved in with him, Kieu said she wanted a divorce. She locked herself in the bedroom, giving him no choice but to sleep on the living room sofa. Without any provocation, she routinely screamed at him, threw food on the floor, and, on one occasion, even "dump[ed]" her dinner on the sofa. She refused to engage in sexual relations. Plaintiff testified that Kieu's hostile behavior, and locking him out of their bedroom, continued until November 7, 2006.
On that day, he arrived home from work at approximately 11:00 p.m. and changed into a sweatsuit. He immediately heard the doorbell ring and observed Kieu answer the door. At that moment, a police officer entered the apartment and accused plaintiff of beating Kieu. When he denied having done so, Kieu pointed to a bruise on her body. Despite plaintiff's denials, the officer arrested him and took him to the Piscataway police station. When Kieu failed to appear in court to testify, the charges were dropped.
According to plaintiff, Kieu's false accusation that he had assaulted her, and her cruel behavior toward him, caused him to suffer "emotional distress and depression." He maintained that for a year, he was unable to fall asleep until 2:00 a.m. because of the depression and anxiety that resulted from Kieu's poor treatment of him. He consulted a psychiatrist, who prescribed medication to help him sleep. According to plaintiff, the medication was not helpful.
Although the exact date is not clear from the record, plaintiff filed a divorce complaint in the latter part of 2007 or early in 2008. On July 7, 2008, the parties executed a PSA, in which Kieu acknowledged that her conduct constituted extreme cruelty. She admitted to the following allegations:
a) Wife has at various times and places committed acts of extreme cruelty towards Husband,
b) Husband and Wife constantly bicker and argue,
c) Wife wrongfully called the Piscataway police on Husband on November 7, 2006, which resulted in Husband ...