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Qian Zhong v. Xue Ye

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 15, 2012

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-13-1461-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2012 -

Before Judges Graves and Koblitz.

Defendant Xue Ye appeals from a July 2, 2010 order directing plaintiff Qian Zhong to provide two weeks advance notice to defendant of his inability to exercise parenting time*fn1 and making her responsible to pay child care expenses if, after such notice, she does not make arrangements with the child's insured care provider. She also appeals from the August 27, 2010 order denying her application for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we reverse.

We previously reviewed another appeal involving this family. Qian Zhong v. Xue Ye, No. A-1429-09 (App. Div. Oct. 14, 2010). At that time, we described the family situation as follows:

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 [Property Settlement Agreement (PSA)]. Their daughter had special needs and passed away within six months of their divorce. Their []son[, born in November 2000,] is also a child with special needs, requiring full-time care.

The parties' PSA set forth a precise schedule for plaintiff concerning parenting time, which was subsequently modified by the court over defendant's objection to accommodate plaintiff's work schedule. We affirmed the judge's modification of that schedule in our October 14, 2010 decision. Provision 3.2(d) of the PSA was not modified. It reads:

It is agreed that if any party does not fulfill his/her obligation toward scheduled parenting time due to [a] reason other than their own sickness as defined in 3.2x, the other party may ask for reimbursement for additional expenses related to the child care, in addition to requesting to make[] up such absent parenting time. These expenses may include but [are] not limited to childcare expenses at the market rate of a professional nurse.

Provision 3.2(e)(x) of the PSA states in part:

In the event that either parent is unable to provide child care during their scheduled parenting time due to their own illness, defined as being admitted to the emergency room or hospitalized or such as prescribed by a physician's note as unfit to care for the children, they agree to provide each other with appropriate care for the children at the moment of notice. It is necessary for both parties to judge the children's care as the first priority and reschedule [] all other matters. If either parent is traveling out of town, he/she will make efforts to return as quickly as possible. When the parent, he or her, claim[s] that he/she is out of [] town, [proof] of [being out of town] may be necessary to present to the other parent. . . . In the event that the husband is not able to care for children for over (one) weekend[] due to his sickness, the wife may [be] entitled to additional childcare support for additional child related expenses incurred.

The judge provided no specific reasons for modifying these provisions of the PSA to provide that plaintiff shall not be responsible for paying child care expenses for his scheduled parenting time if he gives two weeks written notice of cancellation. The judge noted in a letter of clarification sent October 4, 2010, that if the husband failed to comply with the two-week notice requirement, he was then required to pay for all child care expenses thereby incurred, including those of an out- of-network provider.

On appeal, defendant raises the following issues:

POINT I:*fn2 THE COURT ERRED IN FACT FINDINGS.

POINT II: PLAINTIFF FAILED TO PROVE ANY CHANGE OF CIRCUMSTANCE.

POINT III: THE COURT ERRED IN DISREGARD N.J.S.A. 'PSA ENFORCEMENT'.

POINT IV: THE COURT FAILED TO COMPLY COURT RULE/N.J.S.A. IN CHILD SUPPORT.

POINT V: THE COURT FAILED TO CONFORM COURT RULE IN CUSTODY / PARENTING TIME.

POINT VI: THE COURT FAILED TO ABIDE BY COURT RULE IN PRIOR ORDERS.

POINT VII: THE APPEALED DECISION IS BARRED BY THE LAW OF THE CASE.

POINT VIII: THE COURT DECISION HAS CLEAR AND HARMFUL ERROR AND CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT.

POINT VIIII: THE COURT DECISION IS AMBIGUOUS AND HARD TO ENFORCE.

Defendant maintains that each parent has been responsible for obtaining nursing care for their severely disabled son during that parent's scheduled parenting time. She indicates that qualified nurses covered by insurance are difficult to find and that scheduling is done weeks in advance. She further asserts that she must hire unreimbursed, out-of-network providers when plaintiff cancels his parenting time. Plaintiff states that defendant often frustrates his exercise of parenting time. He alleges that she refuses to send medicine, medical supplies and equipment needed to care for their son. He further asserts that defendant hires people with questionable qualifications and pays them in cash, which is impossible for him to verify. He also claims that he makes up any missed parenting time. The motion judge did not hold a plenary hearing to resolve the contested facts and therefore was unable to evaluate the credibility of the parties.

The PSA clearly anticipated that plaintiff would be responsible for all reasonable child care expenses incurred by virtue of his cancellation of parenting time for any reason other than his verified sickness. The motion judge modified this agreement so that, with proper advance notice from plaintiff, defendant becomes responsible for these expenses. The ordinary standard for post-judgment modifications of support obligations or terms concerning visitation is "changed circumstances." See Lepis v. Lepis, 83 N.J. 139 (1980); Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003) (explaining that visitation terms of a PSA may be disturbed only when there are changed circumstances that would have an impact on the child's welfare). Unfortunately, the record contains neither specific reasons for modifying this provision nor any indication of a finding of changed circumstances. Thus, we must remand on this issue for an expanded fact-finding. See R. 1:7-4; Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) ("We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so.").

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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