Opinion
DOCKET NO. A-4557-13T4
04-13-2016
SABEEN PERVAIZ, Plaintiff-Respondent, v. FRAT IQBAL, Defendant-Appellant.
Omar K. Qadeer, attorney for appellant. Sabeen Pervaiz, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0199-13. Omar K. Qadeer, attorney for appellant. Sabeen Pervaiz, respondent pro se. PER CURIAM
In this matrimonial action, defendant Frat Iqbal appeals an April 22, 2014 judgment of divorce that, among other things, required him to pay $8000 as a Mahr, did not address his counterclaims, and did not address all issues related to equitable distribution. We are constrained to reverse and remand because adequate findings of fact and conclusions of law were not made as to all issues. See R. 1:7-4(a).
A "Mahr" is defined as a term originating from Islamic law describing "the gift which the bridegroom must make to the bride when the marriage contract is made and which becomes her property." Mahr, Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/mahr (last visited Apr. 4, 2016); see Odatalla v. Odatalla, 355 N.J. Super. 305, 308 (Ch. Div. 2002).
I.
Defendant and plaintiff Sabeen Pervaiz were married on June 19, 2009, in an Islamic ceremony performed in New Jersey by an Imam. The parties signed a marriage certificate in which they "agreed to be united in marriage under Islamic Law." In accordance with Islamic customs, defendant was to pay plaintiff $8000 as a "Dowry (Mahr)." In connection with their marriage, the parties received gifts of jewelry and gold.
There were no children born of the marriage. Both parties were employed during their marriage. Plaintiff is a medical doctor and her gross income in 2012 was $129,045. Defendant is an information technology manager and consultant whose gross income in 2012 was $167,153.
The marriage did not last long. Both parties testified that the marriage was contentious. Plaintiff moved out of the marital residence in the spring of 2012. She took with her a suitcase containing jewelry and gold. In August 2012, defendant obtained a final restraining order against plaintiff under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, based on a finding that plaintiff had harassed him.
On August 2, 2012, plaintiff filed a complaint for divorce on the grounds of extreme cruelty. Defendant filed an answer and counterclaim seeking a divorce on the grounds of both extreme cruelty and irreconcilable differences. In his counterclaim, defendant also asserted a Tevis claim, contending that plaintiff's harassment had caused him to suffer mental and emotional distress.
Tevis v. Tevis, 79 N.J. 422 (1979). --------
A Family Part judge tried the case on four, non-consecutive days between August 2013 and March 2014. Both parties were represented by counsel. The contested issues at trial included the grounds for divorce, the payment of the Mahr, allegations of dissipated marital assets, and equitable distribution. In particular, the parties made conflicting claims concerning the amount and value of the jewelry and gold, and plaintiff's bank accounts. Both parties also requested an award of attorney's fees.
In an oral decision, the judge granted plaintiff a divorce on the grounds of extreme cruelty. The trial judge, however, did not make any fact-findings concerning plaintiff's allegations of cruelty by defendant. The trial judge also did not address defendant's counterclaim and, thus, made no findings concerning defendant's allegations that plaintiff had engaged in acts of extreme cruelty. The trial judge also did not address or make any ruling on defendant's Tevis claim.
The judge ruled the Mahr was a valid and enforceable agreement and defendant was obligated to pay plaintiff $8000. In making that ruling, the judge rejected defendant's contention that he had previously paid the Mahr by giving plaintiff a piece of jewelry. The trial judge also rejected defendant's contention that plaintiff was more than fifty percent at fault for the dissolution of the marriage, which defendant contended would have eliminated his obligation to pay the Mahr.
Addressing equitable distribution, the trial judge ruled that plaintiff was "obligated to reimburse defendant for half of the value of the jewelry and gold that she removed from the marital home." Plaintiff, however, failed to produce the jewelry and gold during the divorce proceedings and the judge made no findings concerning the amount or value of the jewelry at issue. Instead, the judge ordered plaintiff to turn over to defendant the jewelry and gold so that defendant could have them appraised. The judge also ruled that defendant was to reimburse plaintiff $28,308 for dissipated marital funds, but that payment did not have to be made until plaintiff turned over the jewelry and gold for appraisal. The judge also did not address or make any ruling on defendant's claim that plaintiff had dissipated assets. Nor did the judge require plaintiff to produce information about the bank accounts she had maintained during the parties' marriage.
The trial judge also addressed other issues related to equitable distribution by ruling (1) defendant owned the marital home, but plaintiff was to "receive one-half of the mortgage pay-down" between June 19, 2009 and August 2, 2012; (2) the parties could keep "the household furnishing and property" and automobiles in their possession; and (3) each party was to be responsible for his or her own debts and liabilities, and defendant was responsible for a tax arrears liability.
The trial judge also ruled that neither party was entitled to alimony. Finally, the judge ruled that each party would be responsible for her or his own attorney's fees and costs.
II.
Defendant now appeals certain aspects of the judgment of divorce contending the trial judge erred by (1) ordering defendant to pay the Mahr to plaintiff; (2) failing to require plaintiff to file an accurate case information statement that included all of her assets subject to equitable distribution, including the jewelry and gold, and plaintiff's bank accounts; (3) making an incorrect and incomplete determination concerning the dissipation of marital assets; and (4) failing to award defendant attorney's fees.
A.
We accord deference to the Family Part's findings of fact in view of its special expertise in family matters if those findings are supported by sufficient competent evidence in the record. Llewelyn v. Shewchuk, 44 0 N.J. Super. 207, 213 (App. Div. 2015). We are compelled to reverse if the Family Part "abused its discretion," "failed to consider all of the controlling legal principles," or reached a determination that "could not reasonably have been reached on sufficient credible evidence present in the record." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). Moreover, if applicable standards are ignored, "we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
A judge is required to make specific findings of fact and state his or her conclusions of law. R. 1:7-4(a); see also Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action). "Failure to make explicit findings and clear statements of reasoning [impedes meaningful appellate review and] 'constitutes a disservice to the litigants, the attorneys, and the appellate court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)). Thus, although our standard of review is generally limited, where inadequate fact-findings are made or where issues are not addressed, we are constrained to remand for further proceedings. See R. 1:7-4(a).
Here, the trial judge failed to place adequate findings of fact on the record and failed to address certain contested issues. Having reviewed the record, we note that both parties failed to raise certain issues at appropriate times during the trial. Both parties also failed to provide the trial judge with all of the relevant evidence. These failures contributed to the incomplete fact-findings. We are constrained to vacate the judgment of divorce and remand this matter for further proceedings.
In a divorce proceeding, a trial judge must evaluate the statutory grounds for divorce in determining whether a judgment is appropriate. See N.J.S.A. 2A:34-2 (identifying the causes for divorce). The judge must then make specific findings of fact on the elements giving rise to the grounds for divorce. Here the trial court did not rule on defendant's counterclaim for divorce or defendant's Tevis claim.
Moreover, the trial judge granted a judgment of divorce to plaintiff based on extreme cruelty without making any findings of fact concerning the allegations of extreme cruelty. N.J.S.A. 2A:34-2(c) defines "extreme cruelty" as "including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant." "Each situation must be evaluated separately to determine the acts complained of and their effect upon the parties involved." Martinique v. Martinique, 50 N.J. Super. 210, 215 (Ch. Div. 1958). Extreme cruelty is not confined to physical abuse. See N.J.S.A. 2A:34-2(c). Intentionally inflicted emotional distress may constitute a form of extreme cruelty. Although plaintiff provided the court with a detailed list of contentions supporting her allegations of extreme cruelty, the trial judge did not make findings concerning any of those acts.
In addressing equitable distribution, a trial judge must evaluate sixteen factors to determine how the parties' assets should be distributed. N.J.S.A. 2A:34-23.1. The judge must also "make specific findings of fact on the evidence relevant to all issues pertaining to . . . equitable distribution, including specifically, but not limited to, the factors" listed in the statute. Ibid. Although we recognize that "valuation is not an exact science," Brown v. Brown, 348 N.J. Super. 466, 477 (App. Div.), certif. denied, 174 N.J. 193 (2002), a court must make an effort to evaluate all assets subject to equitable distribution. See N.J.S.A. 2A:34-23.1.
Here, the trial court did not make a finding on the value of the jewelry and gold. The parties stipulated that when plaintiff left the marital home in April or May 2012, she took a suitcase containing jewelry and gold. Neither party has appealed the trial court's determination that the value of the jewelry and gold should be divided equally. Nevertheless, defendant contended that the jewelry and gold was worth approximately $150,000. Plaintiff, in contrast, contended that the jewelry and gold was worth less than $10,000. Given these divergent contentions, a fact-finding is needed.
The judge also failed to make findings on all aspects of the parties' contentions concerning the dissipation of marital assets. To do that properly, both parties need to produce copies of all bank accounts they maintained during the marriage. The trial court also needs to expressly address defendant's contention that the parties had made an agreement on financial issues. We note, that on the record supplied to us, no evidence of such an agreement exists; rather, only non-binding e-mail exchanges are available. Nevertheless, the trial court needs to address this issue on a complete record and then expressly rule on the issue.
The trial judge also did not make complete findings concerning the Mahr. One of defendant's defenses to the payment of the Mahr was plaintiff's alleged fault in causing the dissolution of the marriage. Because the trial court did not expressly rule on defendant's counterclaim, that defense was not completely addressed. We leave to the trial court's good judgment whether on remand to allow defendant to provide expert testimony concerning the Mahr and to raise new arguments concerning the Mahr. Before us, defendant raised two arguments that were not raised before the trial judge: (1) the Mahr was signed under duress; and (2) no "meeting of the minds" between the parties was reached to enter into a binding Mahr.
[I]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.
[State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).]
Finally, on remand, the trial court may consider whether an award of counsel fees is appropriate. Such a determination is committed to the sound discretion of the trial judge. See N.J.S.A. 2A:34-23; R. 5:3-5(c).
We are not vacating all fact-findings made by the trial judge. The judge made certain unchallenged findings concerning various issues. For example, no party has challenged his ruling that neither party is entitled to alimony and the decision is supported by the record. Thus, on remand, the trial judge may determine that some fact-findings may stand while other fact-findings need to be changed or modified.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION