Opinion
DOCKET NO. A-5533-13T3
04-08-2016
LOURIS S. MIKAEIL, Plaintiff-Respondent, v. GUIRGUIS MIKAEIL, Defendant-Appellant.
Janet S. Del Gaizo argued the cause for appellant. Ellen L. Camburn argued the cause for respondent (Greenberg, Walden & Grossman, LLC, attorneys; Raquel R. Rivera, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1786-10. Janet S. Del Gaizo argued the cause for appellant. Ellen L. Camburn argued the cause for respondent (Greenberg, Walden & Grossman, LLC, attorneys; Raquel R. Rivera, on the brief). PER CURIAM
In this post-judgment matrimonial matter, defendant Guirguis Mikaeil appeals from the June 19, 2014 Family Part orders denying his motion to vacate certain portions of an earlier March 11, 2014 order, and granting plaintiff Louris Mikaeil's application to enforce portions of the earlier order and awarding her counsel fees. For the reasons discussed below, we affirm in part and reverse in part.
I.
We summarize the most salient facts and procedural history surrounding the entry of the amended dual judgment of divorce (JOD) and the post-judgment motions that have continued to punctuate the parties' bitter and protracted dispute.
The parties were married in December 1998. They had three children, triplets born in 1995, all of whom are presently attending college. After a trial, the court entered the JOD on August 30, 2011. Defendant was awarded legal and physical custody of the children. Plaintiff was ordered to pay defendant weekly child support of $163. A Bayonne property owned by the parties was to be sold and the net proceeds divided equally between them. Rents collected from the property were to be held in escrow pending future distribution by the court when the property was sold. Defendant retained ownership of the Honda motor vehicle. Pursuant to an August 16, 2010 pendente lite order, the JOD again directed defendant to pay counsel fees of $2500 to plaintiff's trial counsel, Maggi Khalil, Esq., by October 1, 2011.
Besides the Honda, the parties owned two other vehicles that were not referenced in the JOD. On November 4, 2011, the trial court entered an order directing the parties to "cooperate and promptly sell the 1997 Chevy [Astro] van and divide the net sale proceeds equally." Defendant was also directed to "promptly have the 1989 'step-truck' removed by the lien holder; or, if there is no lien have it sold and divide the net proceeds equally." On March 29, 2012, the court ordered defendant to pay plaintiff $140 from the sale of the Chevy van, representing plaintiff's share of the sale proceeds minus certain credits to which defendant was entitled. Defendant paid plaintiff $140 for the van by check dated April 5, 2012.
The 1989 "step-truck" is alternately referred to by the parties and the court as the "Tasty-Kake" truck.
On June 6, 2013, the court authorized the release of the escrowed rents from the Bayonne property following receipt of written authorizations from the parties that purported to convey their agreement to the distribution. Consequently, plaintiff received $4000, and defendant received $10,199.88 that he "verbally promised . . . will be used to cover college costs for the three children . . . ."
On June 28, 2013, defendant moved to modify the JOD. Specifically, he sought to increase plaintiff's child support obligation, and to compel her to contribute to the children's college costs as part of that obligation. Plaintiff opposed the motion and filed a cross-motion in which she sought, among other things, to compel defendant to: (1) provide an accounting for the $10,199.88 that was to be used for the children's college expenses; (2) use the $10,199.88 for the children's college expenses before seeking contribution from plaintiff; (3) pay plaintiff half of the proceeds from the sale of the step-truck and the Honda; (4) pay the outstanding $2025 balance of Khalil's counsel fee; and (5) pay counsel fees related to the cross-motion.
The court heard argument on the motions on January 10, 2014. The court noted that the parties had presented different versions of the document that resolved their dispute regarding distribution of the escrowed rents. Defendant contended that the agreement was a single-sided document, while plaintiff averred that additional writing appeared on the back page.
On January 15, 2014, the court held an evidentiary hearing to determine which document was valid. Plaintiff, defendant, and the realtor who held the escrowed rents testified at the hearing, and the court reviewed the disputed documents. In an oral opinion, the motion judge found that both plaintiff and the realtor testified credibly. In contrast,
[Defendant] during his testimony was argumentative. Despite repeated instructions from the [c]ourt not to argue, he argued. He argued repeatedly.
Unfortunately, that undermined his credibility. He [prevaricated], he argued, he parsed his testimony, and was not convincing. It is clear that he filed with the [c]ourt the document attached to the order, which is a one-sided document. The [c]ourt finds it credible that the original document when signed by [] plaintiff was a two-sided document.The judge then went on to conclude that the parties intended to use the $10,199.88 that was distributed to defendant for the benefit of the children.
On March 11, 2014, the motion judge issued an order and comprehensive twenty-page written statement of reasons. In pertinent part, the order provided:
9. [] Plaintiff's request for [] [d]efendant to provide an accounting of the $10,199.88 from Nextage New Generation Realty is granted. [] Defendant shall serve [] [p]laintiff's [a]ttorney with an itemized accounting for those funds by April 7, 2014. [] Plaintiff's request to compel [] [d] efendant to apply the $10,199.88 for the [c] hildren's college expenses before seeking contribution from [] [p]laintiff is granted.
13. The [c]ourt's November 4, 2011 Order is enforced. [] Defendant shall sell the Honda CRV and divide the net sale proceeds equally. [] Defendant shall provide proof that the truck was removed by the lien holder or, if there was no lien, [] [d] efendant shall sell the "Tasty-Kake" truck and divide the net sale proceeds equally.
14. The parties' August 30, 2011 Amended Dual Judgment of Divorce is enforced. [] Defendant shall pay $2,025 in outstanding
[a]ttorney's fees owed to [] [p]laintiff's former [a]ttorney, Maggi Khalil, Esq., by June 1, 2014.
15. [] Plaintiff may file and serve a motion for legal fees for this application.
On April 30, 2014, plaintiff's attorney filed a Certification of Services pursuant to the March 11, 2014 order, in which she detailed her total fees and costs of $3027.50. Defendant opposed the fee application. Additionally, on May 7, 2014, defendant, who was previously represented by counsel, filed a pro se motion pursuant to Rule 4:50 seeking to vacate paragraphs nine, thirteen, fourteen, and fifteen of the March 11 order. Plaintiff responded with a cross-motion to enforce litigant's rights, in which she sought to compel defendant to comply with the March 11 order, and an award of counsel fees.
The court conducted oral argument on the motions on June 13, 2014. On June 19, the court entered companion orders that: (1) denied defendant's motion to vacate the quoted portions of the March 11 order; (2) found defendant in violation of litigant's rights and compelled him to comply with paragraphs nine and thirteen of the March 11 order; (3) granted in part and denied in part plaintiff's application for fees pursuant to the March 11 order, and directed defendant to pay $700 to plaintiff's attorney within thirty days; and (4) authorized plaintiff to seek counsel fees related to the June 19 order.
On July 3, 2014, plaintiff's counsel filed a second Certification of Services seeking total fees and costs of $1762.50. After considering defendant's opposition, the court awarded plaintiff an additional $875 counsel fee, to be paid by November 15, 2014. The court also amended the June 19 order "as follows: [] Defendant shall sell the 1997 [Astro] van (not the Honda) and divide the net sale proceeds equally in accordance with the November 5, 2011 [o]rder."
II.
Defendant filed a notice of appeal, specifically limited to the June 19, 2014 orders. We now address defendant's contentions on appeal that relate to those orders. Specifically, defendant argues that the trial court erred in refusing to vacate, pursuant to Rule 4:50-1, paragraphs nine, thirteen, fourteen, and fifteen of the March 11, 2014 order. Defendant further contends that the court's credibility findings are against the weight of the evidence and that plaintiff failed to prove he agreed to the terms contained in the disputed two-sided document.
We conduct a limited review of a trial court's fact-finding function. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Gnall v. Gnall, 222 N.J. 414, 428 (2015). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Cesare, supra, 154 N.J. at 413. It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will "intervene and make [our] own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007 )); see also Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995). It is under these standards that we review the decisions of the Family Part judges.
Motions to vacate an order or judgment are generally reviewed under the abuse of discretion standard. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). "The decision granting or denying an application to open a judgment will be left undisturbed unless it represents a clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994).
Rule 4:50-1 provides the grounds upon which an order or judgment may be vacated:
[T]he court may relieve a party . . . from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.Guided by these standards, we separately address defendant's various contentions.
A.
We agree with defendant that the trial court erred with respect to the disposition of the various motor vehicles. First, with respect to the Honda, that vehicle was specifically awarded to defendant in the JOD. Accordingly, no basis existed for plaintiff's application to compel defendant to sell the Honda and split the proceeds with her. Indeed, the court recognized its mistake and corrected it in its September 19, 2014 order, as plaintiff candidly concedes. Thus, although the court may have mistakenly ordered the sale of the Honda, that issue has now been rendered moot by virtue of the September 19, 2014 amended order.
Unfortunately, in amending its order with respect to the Honda, the court mistakenly granted plaintiff relief with respect to the Chevy Astro van. Plaintiff again candidly acknowledges that relief with respect to the Chevy Astro van was neither outstanding nor requested. In fact, the record clearly establishes that, on March 29, 2012, defendant was ordered to pay plaintiff $140 for the van, and that he promptly complied. Hence, although defendant does not appeal the September 19, 2014 order, in an effort to bring finality to this issue we vacate that portion of the order that directed the sale of the Chevy Astro van. See R. 4:50-1(e) (authorizing relief where an order has been satisfied).
Finally, with respect to the "Tasty-Kake" truck, defendant's undisputed proofs established that the vehicle is subject to a lien in excess of $100,000, by virtue of which defendant lacks the ability to either sell or move it. We conclude that plaintiff failed to demonstrate that defendant has the present ability to comply with the court's order, or that his lack of compliance is willful. Generally, before relief can be granted to a litigant pursuant to Rule 1:10-3, "the court must be satisfied that the party had the capacity to comply with the order and was willfully contumacious." Pressler & Verniero, Current N.J. Court Rules, Comment R. 1:10-3 (2016). Accordingly, we vacate the March 11, 2014 order to the extent it granted plaintiff relief with respect to the "Tasty-Kake" truck.
B.
Prior to the parties' divorce, on August 16, 2010, the court entered an order in which it found that defendant had failed to provide an appropriate accounting that was previously ordered. The court also awarded plaintiff a counsel fee of $2500, payable in three installments of $835 over a ninety-day period starting on September 16, 2010. In the JOD, defendant's obligation to pay this counsel fee was continued, and he was again directed to pay the $2500 fee by October 1, 2011.
Plaintiff alleged that $2025 of the counsel fee award remained outstanding. Accordingly, she sought to enforce defendant's compliance with this provision of the JOD, which the court granted on March 11, 2014. In his statement of reasons, the motion judge found that defendant did not dispute plaintiff's allegation that the sum remained unpaid.
Defendant challenges the court's denial of his motion to vacate this fee award. He argues that Khalil was guilty of certain unethical conduct during the divorce proceedings that rendered the fee award inappropriate. He also contends that in his motion to vacate the fee award he produced copies of fifteen cancelled checks to Khalil totaling $775, thus leaving a remaining balance of $1725, not $2025.
To the extent that defendant seeks relief based on Khalil's alleged misconduct during the divorce proceedings, he was clearly aware of such conduct when the JOD was entered in 2011. Consequently, any appeal of that fee award should have been taken from the JOD, rather than the court's order entered some three years later declining to vacate it.
Additionally, the motion judge properly concluded that, "[w]hile [] [d]efendant filed his motion pursuant to Rule 4:50-1, [his] application is a Rule 4:49-2 [m]otion for reconsideration for all intents and purposes." The judge correctly noted that defendant in essence "[sought] to introduce new evidence for the [c]ourt's reconsideration of its [March 11, 2014] [o]rder."
As with motions to vacate, we review the trial court's denial of a motion for reconsideration under an abuse of discretion standard. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). Reconsideration is "'a matter within the sound discretion of the Court, to be exercised in the interest of justice[.]'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is appropriate if "'1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401); see also Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). Reconsideration is not appropriate as a vehicle to bring to the court's attention evidence that was not presented, but was available, in connection with initial argument. Id. at 463.
Here, defendant has failed to demonstrate that the cancelled checks to Khalil that he belatedly produced were not available at the time of the motions that resulted in the March 11, 2014 order. Thus, he is not entitled to relief under Rule 4:49-2. Defendant has likewise failed to show that the checks are "newly discovered evidence" entitling him to relief from judgment under Rule 4:50-1(b). Accordingly, we affirm the court's denial of defendant's motion to vacate Paragraph 14 of the March 11, 2014 order.
C.
Defendant's challenge to the court's ruling compelling him to apply the $10,199.88 from the escrowed rents for the children's college expenses and to account for those funds warrants little discussion. Rather than relying upon conflicting certifications in which the parties presented different versions of the document that purported to represent their agreement, the judge properly conducted an evidentiary hearing to determine which document was valid. The judge made detailed credibility findings that are comprehensively set out in his oral and written opinions. The judge found plaintiff's version more credible, and concluded that defendant intentionally failed to produce the two-sided agreement that allocated use of the funds for the children's college expenses. "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare, supra, 154 N.J. at 412. We find no basis to disturb the trial court's findings, and affirm the court's denial of defendant's motion to vacate Paragraph 9 of the March 11, 2014 order.
D.
We next address defendant's challenges to the court's June 19, 2014 and September 19, 2014 counsel fee awards. Although defendant has not appealed the September 19 order, we nonetheless opt to consider it since the June 19 order expressly authorized plaintiff's counsel to submit a certification of services that ultimately resulted in the September 19 fee award.
When fees are sought in a matter in the Family Part, the court must consider the factors in Rule 5:3-5(c). Mani v. Mani, 183 N.J. 70, 93-94 (2005). When awarding fees under the rule, the trial court must consider
whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.We review the trial court's award of fees under an abuse of discretion standard. Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000) (citation omitted).
[Id. at 94-95 (citations omitted).]
Here, the motion judge reviewed plaintiff's applications for fees in light of the criteria in Rule 5:3-5(c). In the statement of reasons that accompanied the June 19, 2014 order, the judge explained:
In her [c]ertification and during legal argument, [] [p]laintiff requested [a]ttorney's fees. [] Plaintiff certified that [] [d]efendant "is tirelessly litigious and I simply cannot financially keep up with him . . . . My funds are severely limited and I cannot afford to continue to spend towards unnecessary legal expenses caused by [d]efendant's relentless harassment." During legal argument[] the [c]ourt found that [] [p]laintiff was credible in her assertions that [] [d]efendant filed an incomplete version of their agreement regarding the Nextage money. The [c]ourt [] also found that this money was intended for the [c]hildren's college costs. [] Plaintiff had to bring this Cross Motion in part to enforce the parties' agreement.
The [c]ourt finds that [] [p]laintiff filed her Cross Motion in good faith. In his [o]pposition [] [d]efendant referred to his 2013 earnings and contended that they were less than [] [p]laintiff's 2013 earnings. The [c]ourt does not find that [] [d]efendant is unable to pay a portion of [] [p]laintiff's legal fees. [] Plaintiff's request for [a]ttorney's fees pursuant to the [c]ourt's [March 11, 2014] Order is granted in part [and] denied in part. [] Defendant shall pay $700 to [] [p]laintiff's [a]ttorney by [July 19, 2014].
The judge engaged in a similar analysis in his September 19, 2014 decision that granted in part plaintiff's fee application, which the court had authorized in the June 19 order. While acknowledging his error regarding the Honda, the judge found that plaintiff had otherwise obtained favorable rulings in the June 19 order, that she filed her cross-motion in good faith, and that defendant had failed to comply with the requirement that he provide an itemized accounting for the $10,199.88 he received from the escrowed rents. The judge found that, balancing the relevant factors, defendant should be required to pay a portion of the fees that plaintiff had incurred. The judge thereafter awarded plaintiff reasonable counsel fees in the amount of $875.
We are convinced that the judge's findings on this issue are supported by the record, and the awards do not constitute a mistaken exercise of discretion. Accordingly, we affirm the counsel fee awards.
E.
For the first time on appeal, defendant argues that because he met his burden of proof to show changed circumstances, the court was required to order discovery and review plaintiff's support obligations. However, because defendant did not challenge this aspect of the March 11, 2014 order, we decline to consider the issue on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("An argument not presented in the trial court is not cognizable on appeal.").
Defendant also attempts to assert new arguments in his reply brief. These include a contention that the motion judge erred in failing to conduct a hearing to determine whether the parties actually agreed to the essential terms contained in the disputed document that resolved the disposition of the escrowed rents. However, it is well settled that it is improper for a party to use a reply brief to raise an issue for the first time or enlarge the main argument. State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div.), certif. denied, 218 N.J. 273 (2014); N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., LLC, 399 N.J. Super. 40, 50 (App. Div.), certif. denied, 196 N.J. 344 (2008); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 595-96 (App. Div.), certif. denied, 168 N.J. 294 (2001). To the extent that we have not specifically addressed any of defendant's remaining arguments, we conclude that they are without merit and do not warrant further discussion. R. 2:11-3(e)(1)(E).
Summarizing, we reverse those portions of the trial court's orders that granted plaintiff relief with respect to the three motor vehicles. As to all other issues, we affirm.
Affirmed in part and reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION