                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2145-18T1

JANET YIJUAN FOU,

          Plaintiff-Respondent,

v.

JOE ZHUOWU FOU,

          Defendant-Respondent.

___________________________

KEVIN K. TUNG, ESQ.,

     Appellant.
____________________________

                    Submitted December 16, 2019 – Decided June 12, 2020

                    Before Judges Rothstadt, Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Middlesex County,
                    Docket No. FM-12-1685-09.

                    Kevin K. Tung, appellant pro se.
            Pashman Stein Walder Hayden, PC, attorneys for
            respondent Janet Yijuan Fou (James A. Plaisted and
            Michael J. Zoller, of counsel and on the brief).

PER CURIAM

      Kevin K. Tung, a New Jersey attorney, appeals from a Family Part order

that denied his motion to intervene in a divorce action.       Tung previously

represented plaintiff Janet Yijuan Fou in the divorce action, but he had been

procured to do so by defendant Joe Zhuowu Fou. The matter concluded with

the Fous executing a final judgment of divorce (JOD) that incorporated a

property settlement agreement (PSA) prepared by Tung. Plaintiff later moved

for relief from the JOD pursuant to Rule 4:50-1. After a multi-day hearing, a

Family Part judge granted plaintiff's motion.     In October 2014, the judge

issued an amended final JOD, which we affirmed. Fou v. Fou, No. A-1569-14

(App. Div. July 21, 2016).

      Thereafter, the Office of Attorney Ethics (OAE) placed Tung under

investigation.   Plaintiff also sued Tung for malpractice and obtained a

judgment against him. Tung then filed unsuccessful motions to intervene in

this action with this court and the Family Part, arguing that the JOD should not

have been vacated. This appeal ensued.




                                                                       A-2145-18T1
                                      2
      We summarize the pertinent facts recited in our prior opinion. See Fou,

slip op. at 1-8. The Fous were married in China in 1975, and they relocated to

the United States in 1985. Plaintiff spoke Mandarin and, at all times relevant

to this appeal, had a limited understanding of the English language.         The

parties began to discuss divorce in 2007, and they executed two agreements in

Mandarin that allowed for equal distribution of property and assets of a family

business at a future date. In February 2009, the parties jointly met with Tung,

an attorney that defendant had chosen. Plaintiff signed a retainer agreement

with Tung. That same month, the parties executed two additional agreements

in Mandarin that provided for equal division, at a future date, of certain family

and business assets located in China.

      Tung also prepared a PSA, written in English. The PSA stipulated that

defendant would pay plaintiff one-third of his salary as support; each party

would be responsible for his or her debts and obligations; the marital residence

would be sold and the net proceeds divided equally; each party would retain all

other assets in his or her possession; and there would be no other equitable

distribution. Tung filed a complaint on plaintiff's behalf, and on May 4, 2009,

the judge entered a JOD, which incorporated the PSA.




                                                                        A-2145-18T1
                                        3
      In September 2011, plaintiff moved, pursuant to Rule 4:50-1, for relief

from the parties' JOD, claiming that the PSA differed markedly from their

prior agreements.     On September 12, 2012, a Family Part judge granted

plaintiff's motion. In so doing, the judge found that Tung had conflicting

loyalties, as defendant procured his services, but Tung represented plaintiff

during the parties' divorce.        The judge also determined that despite

representing plaintiff, Tung prepared the PSA based on defendant's

instructions. The judge further concluded that plaintiff's retainer agreement

was invalid, as independent counsel had not reviewed the agreement. The

judge noted blatant inconsistencies between the prior agreements and the PSA,

which made no mention of dividing company assets. Therefore, the judge

invalidated all of the agreements and determined that the issues of equitable

distribution and spousal support would need to be re-litigated.

      Thereafter, default was entered against defendant pursuant to Rule 4:43-

1, and plaintiff filed a notice of equitable distribution in accordance with Rule

5:5-10. After considering plaintiff’s notice of equitable distribution, another

judge filed an amended final JOD on October 22, 2014. The amended JOD

awarded plaintiff alimony and assets that amounted to around half of the

parties' total assets. It also awarded plaintiff attorney's fees of $229,389.69.


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                                        4
       Defendant appealed from the amended final JOD, and we affirmed. Fou,

No. A-1569-14. Our Supreme Court denied certification. See Fou v. Fou, 238

N.J. 370 (2019). The day after the opinion was rendered, we forwarded our

opinion to the OAE. In August 2012, plaintiff sued Tung for malpractice. See

Fou v. Tung, MID-L-6259-12. The malpractice action proceeded to trial, and

on April 25, 2018, a jury found in plaintiff's favor.1

       On August 30, 2018, the OAE filed a complaint against Tung. The

complaint alleged several violations of the Rules of Professional Conduct

stemming from his activities in this matter. In the fall of 2018, Tung filed

motions in the Family Part and in this court to intervene in the original divorce

action.   Both the Family Part and this court denied Tung's motions.          The

Family Part judge entered an order on December 18, 2018 stating,

             Tung's [motion] fails because he is unable to implead
             into this matter under [Rule] 4:31 [sic]. Moreover,
             [his] prior application to intervene was rejected, and
             thereafter submitted to the Appellate [Division] where
             the appeal was denied. Finally, . . . Tung's claims are
             not against [p]laintiff or [d]efendant in the instant
             matter, but instead involve the actions of the [t]rial
             [j]udge.

This appeal ensued.


1
    Final judgment was entered against Tung on January 11, 2019.


                                                                        A-2145-18T1
                                        5
On appeal, Tung raises the following arguments:

     I. THE [JUDGE] . . . ERRED IN DENYING
     [TUNG'S] MOTION TO INTERVENE.

     A. [TUNG'S] MOTION TO INTERVENE IS AS OF
     RIGHT.

     B. NO UNDUE DELAY OR PREJUDICE TO THE
     ORIGINAL PARTIES.

     C. THE FOUR CRITERIA FOR INTERVENTION AS
     OF RIGHT ARE MET.

     II. [THE FAMILY PART JUDGE'S] OPINION AND
     [THE] OPINION OF THE APPELLATE DIVISION
     VIOLATE . . . TUNG'S DUE PROCESS RIGHT.

     A. THE RIGHT TO PRACTICE LAW IS A
     PROPERTY RIGHT.

     B. THE OPINIONS OF [THE FAMILY PART
     JUDGE] AND [THE] APPELLATE DIVISION RISE
     TO A LEVEL OF A PUBLIC REPRIMAND–DUE
     PROCESS   MUST     BE   GIVEN    BEFORE
     RENDERING A DECISION.

     III. [THE FAMILY PART JUDGE'S] DECISION
     WAS PREMATURE AND A PRODUCT OF
     [FRAUD] UPON THE COURT BY [PLAINTIFF'S]
     ATTORNEYS.

     A. TIMELINES OF MAJOR EVENTS LEADING TO
     THE FRAUD UPON THE COURT BY PLAINTIFF'S
     ATTORNEYS.

     B. ATTORNEYS FOR PLAINTIFF'S RESPONSES
     TO [THE OAE].

                                                  A-2145-18T1
                              6
             C.   ATTORNEYS     [WHO]    MADE     THE
             MISREPRESENTATION HAD A FINANCIAL
             INTEREST IN THE OUTCOME OF THE CASE.

             D. FRUIT OF THE POISONOUS TREE DOCTRINE
             ON [THE FAMILY PART JUDGE'S] DECISION.

             E. [THE FAMILY PART JUDGE'S] DECISION
             MUST BE SET ASIDE, BECAUSE IT IS A
             PRODUCT OF FRAUD UPON THE COURT.

             IV.  PUBLIC        POLICY   MANDATES   THE
             DISMISSAL         OF    THE    MALPRACTICE
             COMPLAINT.

We conclude that Tung's arguments lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief

comments.

      Our Rules of Court govern intervention at trial, and the trial judge's

interpretation of those rules is subject to de novo review.            Washington

Commons, LLC v. City of Jersey City, 416 N.J. Super. 555, 560 (App. Div.

2010).

      Rule 4:33-1, which governs intervention as a matter of right, sets forth

four criteria:

             The applicant must (1) claim "an interest relating to
             the property or transaction which is the subject of the
             transaction," (2) show he is "so situated that the
             disposition of the action may as a practical matter

                                                                          A-2145-18T1
                                      7
            impair or impede his ability to protect that interest,"
            (3) demonstrate that the "applicant's interest" is not
            "adequately represented by existing parties," and (4)
            make a "timely" application to intervene.

            [Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563,
            568, (App. Div. 1998) (quoting Chesterbrooke Ltd.
            P'ship v. Planning Bd., 237 N.J. Super. 118, 124 (App.
            Div. 1989)).]

In deciding a request to intervene pursuant to Rule 4:33-1, if the movant meets

the rule's requirements, intervention must be permitted.         See Am. Civil

Liberties Union of N.J., Inc. v. County of Hudson, 352 N.J. Super. 44, 70

(App. Div. 2002).

      Tung unpersuasively asserts that the judge should have allowed him to

intervene as of right because he maintains a property interest in his privilege to

practice law in New Jersey.      However, Tung does not claim "an interest

relating to the property or transaction which is the subject of the transaction,"

as required by Rule 4:33-1. Namely, Tung's ability to practice law in New

Jersey is unrelated to the Fous' original divorce proceeding. Tung's motion

therefore fails on the first and most fundamental requirement of Rule 4:33-1.

As the judge found, Tung's motivation to intervene was his desire to challenge

prior court rulings, thereby potentially launching a collateral attack on the

malpractice judgment against him. As the judge correctly determined, that


                                                                         A-2145-18T1
                                       8
motivation is woefully insufficient to allow him to intervene in the parties '

divorce action.

      Affirmed.




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