                        NOT FOR PUBLICATION WITHOUT THE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-1904-16T1
Qian Zhong,

        Plaintiff-Respondent,

v.

Xue Ye,

     Defendant-Appellant.
_________________________________

              Submitted December 6, 2017 – Decided August 2, 2018

              Before Judges Fuentes, Koblitz and Manahan.

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

              Cores &       Associates, LLC, attorneys             for
              appellant     (Melanie Szuba Appleby, on             the
              brief).

              Qian Zhong, respondent pro se.

PER CURIAM

        Plaintiff Qian Zhong and defendant Xue Ye were married in

1990, and had two children, Cathy, who was born in 1997,1 and Adam,




1
     Cathy passed away in 2005.
who   was     born    in    2000.2         The   Chancery        Division,   Family     Part

dissolved the parties' marriage in a Final Judgment of Divorce

(JOD)       entered    on    June     17,    2006.          The    JOD    incorporated      a

comprehensive Property Settlement Agreement (PSA) that the parties

negotiated with the assistance and advice of their respective

independent counsel.            The PSA addressed all of the issues related

to    the    dissolution      of     the    marital        estate,    awarded     defendant

physical custody of the children and joint legal custody to both

parties, provided parenting time to plaintiff, and established

plaintiff's child support and alimony obligations.                           The PSA also

obligated      plaintiff      to     provide         and   maintain      health   insurance

coverage to accommodate Adam's special needs related to his severe

neurological         problems      that     restrict       his    mobility   and   require

constant personal attention.

       The legal termination of the marriage did not assuage the

intensity of the rancorous relationship the parties continue to

have as parents.            The parties have filed numerous post-judgment

motions before the Family Part and three appeals before this court.

See Qian Zhong v. Xue Ye, No. A-2480-10 (App. Div. Mar. 15, 2012);

Qian Zhong v. Xue Ye, No. A-0674-10 (App. Div. Mar. 15, 2012);



2
   We use pseudonyms to refer to the children to protect their
privacy and preserve the confidentiality of the information
presented to the Family Part. R. 1:38-3(d).

                                                 2                                  A-1904-16T1
Qian Zhong v. Xue Ye, No. A-1429-09 (App. Div. Sept. 21, 2010).

Thus    far,   these    legal   determinations     have    not   resolved    the

underlying cause of the problems.

       In this fourth appeal, defendant seeks review of an order

entered by the Family Part on November 29, 2016, denying her motion

to: (1) modify child support; (2) award her sole legal custody of

Adam; (3) compel plaintiff to reimburse her for expenses she

incurred as a result of plaintiff's decision not to exercise his

parenting time with Adam; and (4) compel plaintiff to provide

health insurance for Adam indefinitely.             Defendant sought this

relief after learning plaintiff had relocated to China. The motion

judge   decided   defendant's     motion   based    only    on   the   parties'

conflicting certifications.        The judge explained the basis of her

decision in a statement of reasons, which was later supplemented

by an Amplified Opinion submitted pursuant to Rule 2:5-1(b), after

defendant filed her Notice of Appeal.        Based only on the parties'

conflicting certifications, the judge did not find a sufficient

change in circumstances to warrant any of the relief defendant

sought.

       After reviewing the record developed before the Family Part,

we disagree with the motion judge's conclusion that plaintiff's

relocation to China does not constitute a significant change in

circumstances.         Plaintiff's unilateral decision to relocate to

                                      3                                 A-1904-16T1
China makes him unavailable to participate in Adam's life and

leaves defendant with the sole responsibility to provide the

emotional support and special care required by their severely

disabled son.   Measured against the parenting time arrangement and

other matters related to Adam that the parties negotiated and

agreed to abide by in the PSA, plaintiff's relocation to China

constitutes a significant departure from these court-sanctioned

provisions.

     We thus reverse the order denying defendant's motion and

remand the matter for the court to conduct a plenary hearing to

allow the parties to testify and develop a proper record from

which   the   judge   can   determine      what   changes    are   needed    to

accommodate this new parenting arrangement.                 The judge should

order the parties to file updated Case Information Statements

(CIS)   and   consider   permitting       limited   pre-hearing    discovery

related to Adam's current and future needs.            We leave it to the

discretion of the court to determine the form and scope of such

discovery.    Before we address the merit of the arguments raised

by defendant, we will briefly describe the procedural journey that

preceded the order under review.

     On July 25, 2016, defendant filed a pro se emergent Order to

Show Cause (OTSC) after she learned that plaintiff was planning

to relocate to China.       Defendant sought an order from the Family

                                      4                               A-1904-16T1
Part to compel plaintiff to maintain insurance coverage for Adam

"indefinitely" and grant her sole custody of the child.                    Due to

his severe neurological limitations, Adam required the assistance

of a nurse during those times plaintiff did not exercise his right

to parenting time with his son.           Defendant requested the court to

order plaintiff to reimburse her for the cost she allegedly

incurred to hire a nurse for this purpose from 2013 to 2016.

Defendant     also   petitioned   the     court    to   require    plaintiff      to

establish a "fund" to cover the cost of future derelictions of his

parenting time obligation.

      On July 27, 2016, a Family Part judge granted defendant's

OTSC, in part.       The judge granted defendant "full authority" to

act   on    Adam's   behalf    concerning    "issues     related     to   medical

treatment and medical insurance[.]"               Toward that end, the judge

authorized defendant "to communicate directly with the insurance

company     concerning   all    matters     relating    to    [Adam's]     medical

coverage in light of [plaintiff's] alleged departure to China[.]"

The court denied without prejudice the balance of defendant's

requests.

      On August 2, 2016, the return date of the OTSC, a different

judge      found   defendant    was   not    entitled        to   seek    judicial

intervention under an OTSC because she did not meet the standard

for emergent relief under Crowe v. DeGioia, 90 N.J. 126 (1982).

                                        5                                  A-1904-16T1
The judge noted that both parents had joint legal custody pursuant

to the PSA.        Defendant had "access and privilege to all health

care information and medical insurance coverage regarding her son

. . . [including] the ability to make any claims or appeal any

coverage denials . . . ."                The judge ordered that any further

request    for    relief    of    this    nature   should     be   made    by     motion

practice.        On August 3, 2016, defendant filed a post-judgment

motion seeking the same relief that she requested in the OTSC.

     From   this     point       forward,    the   parties    submitted         lengthy,

conflicting certifications to the motion judge that retraced many

of the most contentious parts of their acrimonious post-judgment

interactions.       The parties were both pro se.              From his residence

in China, plaintiff submitted a certification dated October 1,

2016, contesting defendant's factual claims for relief.                     Plaintiff

also attached to his certification unauthenticated documents he

labeled "exhibits."          Defendant submitted a reply certification

dated October 11, 2016, replete with factual allegations that

conflict with plaintiff's assertions.               Both parties cited various

sections of the PSA that they claimed                     supported their legal

position before the court.

     In an order prepared by the court, dated November 29, 2016,

the motion judge for the most part denied defendant any relief.

However,    the     judge    granted        defendant's      request      "to     compel

                                            6                                    A-1904-16T1
plaintiff to disclose [his] address, phone number, email address,

and fax number promptly after each change overseas . . . ."          The

court also granted defendant's request "to serve each other via

email while plaintiff is living overseas . . . ."3      The judge made

clear, however, that this did not absolve the parties of their

obligation to "properly serve the other party" pursuant to Rule

1:5-2 and Rule 4:4-4.

     In the Statement of Reasons attached to the order, the motion

judge explained the reasons for denying defendant's application

to compel plaintiff to reimburse her for the cost of nursing care

that she incurred when plaintiff did not appear for his parenting

time with Adam:

           A custodial parent who seeks reimbursement for
           child support based on the premise[] that the
           non-custodial parent has failed to utilize his
           visitation time is routinely denied because
           money already paid was for the benefit of the
           child, and presumably used for the child. See
           J.S. v. L.S., 389 N.J. Super. 200-06 (App.
           Div. 2006).

     The   judge's   assertion   that   the   denial   of   defendant's

application under these circumstances is "routinely denied" is not

supported by the facts of J.S. or the compelling facts we confront


3
   The actual wording of this particular section of the order
contains a ministerial error that mixed up the parties designation
in this litigation, giving plaintiff the relief intended for
defendant.    The judge corrected this error in her Amplified
Opinion.

                                  7                             A-1904-16T1
here. In J.S., the defendant sought reimbursement of court-ordered

child support after a paternity test revealed he was not the

child's biological father.     J.S., 389 N.J. Super. at 201-02.        The

trial court granted the defendant's application to relieve him of

his obligation to pay child support, but denied his request to

compel the plaintiff to reimburse him for the child support he

previously paid.      Id. at 203.       In affirming the trial court's

decision, we held:

             We are not persuaded by defendant's argument
             that he should be entitled to recoup his money
             from plaintiff either because of her deceit
             or because she has been unjustly enriched by
             her use of the money to care for her child.
             As the Court has explained, "[b]ecause the
             responsibility to support runs from parent to
             child, not parent to parent, the custodial
             parent   was  not   'unjustly   enriched'   by
             receiving sums and considering them []
             payments for the support of their children."
             "Each parent has a responsibility to share the
             costs of providing for the child while [he or]
             she remains unemancipated."

             [Id. at 205-206 (emphasis added) (first
             quoting Pascale v. Pascale, 140 N.J. 583, 592
             (1995); then quoting Martinetti v. Hickman,
             261 N.J. Super. 508, 512 (1993)).]

     The facts and underlying public policy that formed the basis

of our decision in J.S. stand in sharp contrast to the salient

facts   of   this   case.   Here,   defendant   seeks   to   enforce   the

provisions in the PSA that expressly addresses the need for

plaintiff to honor his parenting time obligations to Adam and

                                    8                             A-1904-16T1
provides the precise remedy defendant seeks to enforce.     Article

III, Section 3.2(c) of the PSA provides, in relevant part:

          The [plaintiff] must make every effort to
          avoid the oversea[s] trip that interferes with
          his regular parenting obligation.          The
          [plaintiff] will show proof of [the] necessity
          of an oversea[s] trip upon [defendant's]
          request . . . Within any 12-month period the
          number of interrupted parenting weekend
          oversea[s] trip[s] shall not exceed 4 times.
          The [plaintiff] shall not travel for two or
          more consecutive weekends due to the respite
          relief required by [defendant].

          [(Emphasis added).]

Subsection 3.2(d) further provides, in relevant part:

          It is agreed that if any party does not fulfill
          his/her obligation toward scheduled parenting
          time due to reason[s] other than their own
          sickness . . . the other party may ask for
          reimbursement for additional expenses related
          to the child care . . . these expenses may
          include but [are] not limited to childcare
          expenses at the market rate of a professional
          nurse.

          [(Emphasis added).]

     In the certification dated October 11, 2016 that defendant

submitted to the Family Part in support of her motion, defendant

alleges that that plaintiff has not fulfilled his parenting time

obligation for the past nine months.       She claims plaintiff's

dereliction has seriously affected her health and compromised her

financial situation.   She averred:



                                9                            A-1904-16T1
                I really do not know how long I can last
                without a break. I have no money to advance
                in [Adam's] child care expenses during
                [p]laintiff['s] absent parenting obligations
                . . . [because] all private self[-]pay nurses
                must be paid at the end of each shift and
                private nurses [are] much cheaper than a
                nursing agency.   Setting up an account [to]
                allow[] nurse[s] [to be] paid by [p]laintiff
                directly is the only option with him overseas.
                Otherwise, I have no money [to] pay, [and]
                [Adam] ultimately will be the one suffering
                when I have to sleep and cannot respond to his
                medical demands.

      Defendant was also concerned about the possible collateral

consequences plaintiff's relocation to China may have on his

responsibility to provide health insurance coverage to Adam.                           In

her certification, defendant noted that under Article X, Section

10.5 of the PSA: "In the event the [plaintiff] does not have

medical insurance through his employment, he shall replace same

at   his    sole    expense    with    a     similar     policy   for   the   children

providing comparable coverage . . . ."                          Among the seventeen

enumerated requests for relief defendant listed in her July 25,

2016 pro se application, defendant specifically sought a court

order      to   compel   plaintiff     to     continue     his    employment-related

insurance        coverage     for     Adam        or   assume    personal     financial

responsibility for the child's medical needs in the event the

policy was no longer available.




                                             10                                 A-1904-16T1
     In the Amplified Opinion, the motion judge found, "while

[defendant's] certification tells a perhaps compelling story, she

points to no specific estimates or evaluations of what a temporary

caregiver would cost or any other examples.     Regardless of this

substantive deficiency, again defendant failed to [satisfy] the

obligations as set forth in [Rule] 5:5-4(a)."   However, the judge

also made clear that defendant's application was denied "without

prejudice."4

     The motion judge's observation concerning defendant's failure

to provide an updated CIS as required by Rule 5:5-4(a) is correct.

However, under the prevailing circumstances, the court has a parens

patriae responsibility to Adam to ensure plaintiff's decision to

relocate to China does not adversely affect this special-needs

child's best interest. See Fawzy v. Fawzy, 199 N.J. 456, 474-75

(2009).   In this light, we now turn to the relevant standard of

review.

     To modify a custody order or a consensual agreement on

custody, courts follow the procedural framework outlined in Lepis

for modification motions.   First, the court must determine if the

party seeking relief has made a prima facie showing of changed


4
  Every decision made by the Family Part that involve the financial
welfare of children is subject to revision or modification based
on changed circumstances. See Lepis v. Lepis, 83 N.J. 139, 151
(1980).

                                11                          A-1904-16T1
circumstances.      R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div.

2014).      If the party makes this initial showing, she is "'entitled

to a plenary hearing as to disputed material facts regarding the

child's best interests, and whether those best interests are served

by modification of the existing custody order.'"      Costa v. Costa,

440 N.J. Super. 1 (App. Div. 2015) (quoting R.K., 437 N.J. at 62-

63).

       In     assessing   whether   there   are   requisite   changed

circumstances, the court must consider the circumstances that

existed when the court made the original determination.       Sheehan

v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958).            The

focus of every judicial determination about custody and parenting

time is "on the 'safety, happiness, physical, mental and moral

welfare' of the children."      Hand v. Hand, 391 N.J. Super. 102, 105

(App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536

(1956)).      However, as a general rule, hotly contested cases

              often turn on credibility determinations,
              which by their nature are impeded when the
              trial    court   cannot     make   first-hand
              observations of the witnesses. Additionally,
              the absence of live testimony obstructs the
              trial court's ability to obtain additional
              details that may be necessary to augment or
              clarify   information    contained   in   the
              documentary evidence, potentially impairing
              the judge's ability to make more detailed
              factual findings. In short, . . . submitting
              . . . documents in lieu of testimonial
              evidence, fails to allow the judge to resolve

                                    12                         A-1904-16T1
            disputed   issues    or        make   credibility
            determinations.

            [Div. of Child Prot. & Permanency v. J.D., 447
            N.J. Super. 337, 353 (App. Div. 2016).]

     Here, the motion judge must make a fact-sensitive assessment

of the impact plaintiff's relocation has had on his financial and

emotional responsibility to help Adam cope with his special needs.

The parties must submit updated CIS's to allow the judge to

determine    whether   modification   of    plaintiff's   child   support

obligation is warranted.      Based on the evidence presented, the

judge must determine whether plaintiff is required to reimburse

defendant for expenses she incurred when plaintiff failed to honor

his parenting time obligations, pursuant to Subsections 3.2(c) and

(d) of the PSA.

     Furthermore, because Adam has reached the age of majority,

the court may also consider whether it would be in his best

interest for the parties to establish a special needs trust.           The

Supreme Court had the opportunity to address and clarify this

approach in J.B. v. W.B., 215 N.J. 305 (2013).            Writing for a

unanimous Court, our colleague Judge Cuff explained some of the

benefits of this type of trust:

            A special needs trust in conjunction with a
            thoughtful plan to gain eligibility and
            receipt of government benefits, including
            Medicaid, SSI, and Division of Developmental
            Disability (DDD) programs, permits a family

                                 13                               A-1904-16T1
           to provide health care, income, housing, and
           vocational services for their disabled,
           dependent child. The redirection of a child
           support obligation from a parent to a trust
           designed to meet the present and future needs
           of the dependent, disabled child should not
           be considered exceptional or extraordinary
           relief, if such a plan is in the best interests
           of the unemancipated child.

           [J.B., 215 N.J. at 329-339.]

If   the   circumstances   warrant    it,   the   court   also   has   the

discretionary authority to appoint a guardian ad litem to represent

the best interests of the child.      Id. at 332-33; R. 5:8B.

     We thus reverse and remand for the court to conduct a plenary

hearing to enable defendant to testify and present evidence in

support of her request for relief.          Plaintiff may petition the

Family Part judge to participate at this hearing remotely from

China, via some form of electronic, audio-visual arrangement.            In

deciding whether to grant such a request, the judge must apply the

two-part test first established by this court thirty years ago in

Aqua Marine Prods., Inc. v. Pathe Comput. Control Systs. Corp.,

229 N.J. Super. 264, 275 (App. Div. 1988), and subsequently adopted

by our Supreme Court in State v. Santos, 210 N.J. 129, 141 (2012).

     Reversed and remanded.    We do not retain jurisdiction.




                                 14                               A-1904-16T1
