JANET YIJUAN FOU VS. JOE ZHUOWU FOU (FM-12-1685-09, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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
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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.
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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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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.
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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].
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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
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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
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motivation is woefully insufficient to allow him to intervene in the parties '
divorce action.
Affirmed.
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