NOT FOR PUBLICATION WITHOUT THE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-1836-15T2
ABDULBASET TAHA,
Plaintiff-Appellant,
v.
GHADA ABDULBASET TAHA,
Defendant-Respondent.
________________________________________________________________
Submitted January 10, 2017 – Decided May 19, 2017
Before Judges Messano and Espinosa.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FM-02-2346-08.
Awad & Khoury, LLP, attorneys for appellant
(Abed Awad, on the brief).
Respondent Ghada Abdulbaset Taha has not filed
a brief.
PER CURIAM
Plaintiff appeals from an order that adjudicated him to be
in violation of litigant's rights, granted various forms of relief
to defendant, denied his cross-motion for a modification of his
support obligation and awarded counsel fees to defendant. For the
reasons that follow, we reverse that order and remand for further
proceedings.
I.
The parties were divorced in 2008 and later entered into a
property settlement agreement (PSA) that established plaintiff's
support obligations. In June 2014, plaintiff filed a motion to
reduce the spousal support obligation established in the PSA due
to changed circumstances and for other relief. Defendant did not
file any opposition to the motion. Plaintiff's motion was denied.
Plaintiff filed a motion for reconsideration, which was also
unopposed by defendant. In September 2014, the trial court granted
plaintiff's motion for reconsideration. The trial judge's written
statement of reasons states, in part:
[A]fter reviewing the filed certification in
the matter, [the court] determines that
plaintiff has demonstrated a change in
circumstances such to warrant a downward
modification of his support obligation.
Plaintiff has provided copies of his yearly
tax returns which show a consistent decline
in plaintiff's income from the time of
inception of support to the present.
Furthermore, since the time of inception of
support, plaintiff has had another child born
to his new wife . . . .
[(Emphasis added).]
The September 2014 order reduced defendant's alimony
obligation to $750 per month and his child support obligation for
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the last remaining unemancipated child to $614.90 per month. The
order also granted plaintiff's request to emancipate the parties'
twenty-two-year-old son, who worked full-time and was self-
sufficient.
In January 2015, defendant filed a motion to: vacate the
September 2014; reinstate the earlier order denying plaintiff's
motion for modification of support; maintain spousal support at
$4,000 per month and for counsel fees. The motion did not
explicitly ask for the court to reverse the emancipation of the
parties' son or to reinstate the prior child support obligation.
In support of her motion, defendant asserted she had not been
served with the motion papers; that she was out of the country
when the motions were filed. Plaintiff had represented to the
court that she had been served by regular and certified mail.
The trial judge granted defendant's motion based upon her
representation that she had not had actual service of the motions
and entered an order that vacated the September 2014 order "in its
entirety." The trial judge's written statement of reasons includes
the following:
[T]he Court believes that the plaintiff's
application for a significant reduction of his
support obligations should be determined on
its merits and that the defendant should have
an opportunity to respond to and/or oppose
such requests, especially in light of the fact
that when determining appropriate support
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obligations, a Court must take into account
the financial standings and circumstances of
both parties. The plaintiff's application in
support of his Motion for Reconsideration
merely set forth dollar amounts that the
plaintiff felt were appropriate amounts for
his support obligations to be set at. Had the
defendant had an opportunity to respond to his
plaintiff's motion and set forth her own
financial circumstances, the Court believes
that the resulting support obligations would
almost certainly have come out differently.
For the reasons stated, the Court's Order
of September 22, 2014 shall be, and is hereby
vacated. Plaintiff is directed to file a new
Motion seeking a recalculation and/or
reduction of his support obligations based
upon his previously alleged reduction in
income or for any other reason applicable to
the plaintiff's current circumstances.
[(Emphasis added).]
Despite the trial court's direction, plaintiff did not renew
his motion for modification of his support obligation until he
filed a cross-motion to the motion in aid of litigant's rights
filed by defendant in October 2015. The relief sought in that
motion was for the court to compel the payment of outstanding
support and issue a two-missed-payment warrant.
Oral argument on the motion and cross-motion was held before
a different judge than the one who had entered the prior three
orders in the case. Unfortunately, the transcript reveals that
the new judge's understanding of the orders previously entered was
inaccurate.
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The excerpts we have quoted from the first judge's decisions
clearly show that the only reason the order reducing spousal
support was vacated was to afford defendant an opportunity to
respond to the merits of plaintiff's motion, a motion the judge
had previously determined had merit. And, the first judge did not
foreclose plaintiff from relying on the materials already
submitted or "any other reason applicable to the plaintiff's
current circumstances."
The second judge interpreted the prior orders as a denial of
plaintiff's motion on the merits that precluded a motion to reduce
his obligation on res judicata grounds unless he was able to
establish there was a change in circumstances since the July 2014
order that originally denied his motion for modification. This
was not the case. Although plaintiff sought relief belatedly, his
motion was explicitly authorized by the first judge.
In his appeal, plaintiff argues the trial judge erred in
failing to apply appropriate legal standards. He contends the
judge erred in failing to modify his support obligations because
the first judge had already determined he had presented a prima
facie case of changed circumstances that warranted modification
and also argues it was error for the judge to deny his cross-
motion without a plenary hearing. Plaintiff argues further that
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the trial court abused its discretion in awarding counsel fees to
defendant.
II.
We need not address plaintiff's arguments regarding his
support obligation at length because it is clear from the record
that the decision to deny plaintiff a decision on the merits of
his motion was based upon an erroneous perception of the orders
previously entered in this case. The order denying plaintiff's
cross-motion,1 reducing plaintiff's support arrears of $48,161.60
to judgment, and ordering him to sell property in Jordan is hereby
vacated.2
Plaintiff argues the prior determination that he had
presented a prima facie case of changed circumstances requires the
court to reduce his support obligation. We reject this argument.
The prior order was vacated explicitly to provide defendant an
opportunity to respond; we reverse and remand so that the parties
may each have their day in court.
The matter is remanded for a determination on the merits of
plaintiff's motion to modify his support obligation. As the first
judge directed, plaintiff may rely on the information previously
1
The order erroneously refers to "defendant's cross-motion."
2
We note that defendant's notice of motion did not seek the sale
of the property in Jordan or the reduction of arrears to judgment.
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submitted and "any other reason applicable to the plaintiff's
current circumstances." Defendant shall have the opportunity to
respond. We leave to the trial judge the determination whether
discovery or a plenary hearing are warranted.
III.
We next address plaintiff's challenge to the motion judge's
award of counsel fees to defendant.
An appellate court "will disturb a trial court's
determination on counsel fees only on the 'rarest occasion,' and
then only because of clear abuse of discretion." Barr v. Barr,
418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v.
Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). A decision
arises from an abuse of discretion if it is "made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Ibid. (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Counsel fees may be awarded "to any party accorded relief
following the filing of a motion in aid of litigant's rights, R.
1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject
to the provisions of Rule 4:42-9." Ibid.; see N.J.S.A. 2A:34-23
(directing a court to consider the factors set forth in the court
rule on counsel fees). The motion judge cited both rules as
providing authority for the award of $3,905 in counsel fees. She
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failed, however, to set forth reasons that justified an award
under either rule.
A.
Rule 1:10-3 grants the trial court discretion to "make an
allowance for counsel fees to be paid by any party to the action
to a party accorded relief under this rule." "[A] proceeding to
enforce litigants' rights under Rule 1:10-3 'is essentially a
civil proceeding to coerce the defendant into compliance with the
court's order for the benefit of the private litigant.'" Pasqua
v. Council, 186 N.J. 127, 140 (2006) (citation omitted). A
threshold finding before relief can be granted under this rule is
that the failure to comply with a court order was willful. 3 See
Pressler and Verniero, Current N.J. Court Rules, comment 4.3 on
R. 1:10-3 (2017) ("Before punitive or coercive relief can be
3
We note that the amount of alimony was fixed by the parties'
PSA, which they entered into approximately eighteen months after
their divorce. The record before us does not include any order
incorporating the PSA into the judgment of divorce. And none of
the orders entered in July, September or November 2014 established
$4,000 as the monthly alimony obligation. They: (1) denied a
motion to reduce the settled upon amount; (2) reduced the settled
upon amount and (3) vacated the order that reduced alimony,
essentially restoring the term established in their PSA. In the
absence of an order that established the amount of alimony, there
is some doubt that relief was available under R. 1:10-3. See
Haynoski v. Haynoski, 264 N.J. Super. 408, 414 (App. Div. 1993)
("The sine qua non for an action in aid of litigant's rights,
pursuant to R. 1:10-[3], is an order or judgment . . . .").
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afforded, the court must be satisfied that the party had the
capacity to comply with the order and was willfully contumacious.")
That threshold finding was absent here. To the contrary, the
motion judge cited plaintiff's inability to pay the counsel fee
she awarded as the reason for ordering that the counsel fee be
deducted from the proceeds of the sale of the Jordan property.
Absent a finding that plaintiff's failure to pay the alimony was
willfully contumacious, there is no basis for relief or a counsel
fee award under Rule 1:10-3.
B.
For counsel fees to be properly awarded in family actions
under Rule 5:3-5(c), a court must consider nine enumerated factors:
(1) the financial circumstances of the
parties; (2) the ability of the parties to pay
their own fees or to contribute to the fees
of the other party; (3) the reasonableness and
good faith of the positions advanced by the
parties both during and prior to trial; (4)
the extent of the fees incurred by both
parties; (5) any fees previously awarded; (6)
the amount of fees previously paid to counsel
by each party; (7) the results obtained; (8)
the degree to which fees were incurred to
enforce existing orders or to compel
discovery; and (9) any other factor bearing
on the fairness of an award.
[See also Mani v. Mani, 183 N.J. 70, 94-95
(2005) (explaining a court "must" consider
these factors even though Rule 5:3-5(c) says
a court "should" consider them); Barr, supra,
418 N.J. Super. at 46 (same).]
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While not every factor must be considered, Reese v. Weis, 430
N.J. Super. 552, 586 (App. Div. 2013), failure to provide analysis
on the record of these factors is a ground upon which a counsel
fee award may be disturbed. Accardi v. Accardi, 369 N.J. Super.
75, 90 (App. Div. 2004); see Gnall v. Gnall, 432 N.J. Super. 129,
165 (App. Div. 2013) ("A counsel fee award is left to the sound
discretion of the trial court, after consideration of the factors
identified in Rule 5:3-5(c)." (emphasis added)), rev'd on other
grounds, 222 N.J. 414, 423 (2015).
Here, the only reason the Family Part put on the record for
granting counsel fees was that plaintiff was "in violation of
litigant's rights for failure to comply with an order." This
purports to address only one of the factors listed in Rule 5:3-
5(c), i.e., "(8) the degree to which fees were incurred to enforce
existing orders." The judge appeared to consider this factor
dispositive as she gave the following response to plaintiff's
protest that he was unable to pay:
[T]his application had to be made because of
non-compliance with an order. You're in
violation of litigant's rights for failure to
comply with an order, that has ramifications.
But for that happening Ms. Taha wouldn't hire
an attorney and pay an attorney to come into
court to seek relief.
As we have discussed, the record fails to show a willful
violation of an existing order by plaintiff. Moreover, it is
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clear the judge gave some credence to plaintiff's claim he was
unable to pay any fees because, in awarding defendant $3,905, she
stated, "The plaintiff is not in a position to pay that outright,
it will be satisfied from the sale of the proceeds [sic] from the
Jordan property." Yet, there was no discussion of plaintiff's
financial circumstances or the other factors set forth in Rule
5:3-5(c).
We are satisfied that the deficiencies in the legal and
factual bases relied upon by the motion judge warrant a reversal
of the order awarding counsel fees to defendant.
Reversed and remanded. We do not retain jurisdiction.
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