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Qian Zhong v. Xue Ye

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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