ABDULBASET TAHA VS. GHADA ABDULBASET TAHA(FM-02-2346-08, BERGEN COUNTY AND STATEWIDE)
A-1836-15T2
| N.J. Super. Ct. App. Div. | May 19, 2017Background
- Parties divorced in 2008 and signed a property settlement agreement (PSA) setting alimony/child support; record does not show incorporation of PSA into the divorce judgment.
- Plaintiff moved in June 2014 to reduce spousal support for changed circumstances; defendant did not oppose; motion initially denied but plaintiff’s September 2014 reconsideration motion was granted by the first judge who found a prima facie change in circumstances and reduced support and emancipated the adult child.
- In January 2015 defendant moved to vacate the September 2014 order, claiming she had not been served; the first judge vacated that order to allow defendant an opportunity to respond and instructed plaintiff to refile for modification if desired.
- Plaintiff did not promptly renew; he filed a cross-motion in October 2015 in response to defendant’s motion in aid of litigant’s rights seeking enforcement of arrears and a warrant for missed payments.
- A second judge (different from the first) misconstrued the prior proceedings, treated the vacatur as a denial on the merits and denied plaintiff’s cross-motion, entered judgment on arrears, ordered sale of Jordan property, and awarded defendant counsel fees.
- Appellate court reversed the portions reducing plaintiff’s cross-motion, vacating the arrears/forced sale order, remanded for a merits determination on modification (allowing reliance on prior submissions), and reversed the counsel-fee award for lack of required findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff was entitled to modification based on prior judge's finding of prima facie changed circumstances | Prior judge already found a prima facie change warranting reduction; plaintiff should get merits ruling without relitigation | Vacatur meant prior relief was nullified and plaintiff must show change from original denial; defendant needed opportunity to respond | Vacatur was granted only to allow defendant to respond; remanded for merits determination; plaintiff may rely on prior filings and new evidence |
| Whether second judge properly denied cross-motion without plenary hearing | Denial without a plenary hearing was improper given plaintiff’s prior prima facie showing and the first judge’s authorization to proceed | Defendant argued need for full consideration and opportunity to respond before modification | Court held second judge misinterpreted prior orders; remanded for an on-the-merits determination, trial judge to decide if plenary hearing/discovery required |
| Whether counsel-fee award under R. 1:10-3 was permissible (motion in aid of litigant’s rights) | Fees were improper where no finding of willful noncompliance; plaintiff demonstrated inability to pay | Defendant sought fees as party accorded relief for enforcement of orders | Reversed: trial judge made no threshold finding of willful contumacious conduct required under R. 1:10-3 |
| Whether counsel-fee award under Rule 5:3-5(c) was supported | Award lacked on-the-record analysis of the nine requisite factors (financial circumstances, reasonableness, results, etc.) | Defendant argued enforcement justified fees | Reversed: judge cited only non-compliance factor and acknowledged plaintiff’s inability to pay; no consideration of the Rule 5:3-5(c) factors on record |
Key Cases Cited
- Barr v. Barr, 418 N.J. Super. 18 (App. Div. 2011) (appellate review of fee awards reversed only for clear abuse of discretion)
- Pasqua v. Council, 186 N.J. 127 (2006) (Rule 1:10-3 enforcement proceeding is to coerce compliance; willful noncompliance required for punitive/coercive relief)
- Mani v. Mani, 183 N.J. 70 (2005) (trial courts must consider Rule 5:3-5(c) factors when awarding counsel fees in family actions)
- Accardi v. Accardi, 369 N.J. Super. 75 (App. Div. 2004) (failure to analyze fee factors on the record can warrant reversal of fee award)
- Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013) (fee awards are discretionary but guided by Rule 5:3-5(c) factors)
- Haynoski v. Haynoski, 264 N.J. Super. 408 (App. Div. 1993) (Rule 1:10-3 actions require an existing order or judgment to enforce)