DINA MUSTAFA VS. MUSTAFA MUHSIN (FM-02-1711-15, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 7, 2019
• Docket: A-2543-17T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2543-17T2

DINA MUSTAFA,

Plaintiff-Respondent,

v.

MUSTAFA MUHSIN,

Defendant-Appellant. ____________________________

Argued March 6, 2019 – Decided May 7, 2019

Before Judges Koblitz, Currier and Mayer.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1711-15.

Jonathan S. Lasser argued the cause for appellant (Dario Albert Metz & Eyerman LLC, attorneys; Shelley D. Albert, on the brief).

Seth R. Parker argued the cause for respondent (Moskowitz Law Group, LLC, attorneys; Seth R. Parker, on the brief).

PER CURIAM Defendant Mustafa Muhsin appeals from a January 19, 2018 order

denying reconsideration of a November 16, 2017 order awarding plaintiff Dina

Mustafa $8767.44 in attorney fees and costs in connection with post-judgment

divorce litigation. After reviewing the record in light of the contentions

advanced on appeal, we affirm substantially for the reasons placed on the record

by the judge in her comprehensive opinion.

The parties were married in Iraq in 1984, had three children and divorced

in March 2016. Plaintiff lives in Abu Dhabi, while defendant and the three

children live in New Jersey. Prior to the divorce judgment, plaintiff entered a

guilty plea to fourth-degree contempt, N.J.S.A. 2C: 29-9(a), for not returning

her daughter to defendant after being ordered to do so. 1

Defendant retained counsel after the November 16, 2017 award of counsel

fees. His lawyer represented him in his motion for reconsideration. The judge

reaffirmed her prior findings when denying reconsideration. We review an

award of attorney's fees for a "clear abuse of discretion," and disturb an award

"only on the rarest of occasions." Heyert v. Taddese, 431 N.J. Super. 388, 444

(App. Div. 2013).

1 We note that plaintiff was previously ordered in 2015 to pay more than $53,000 in counsel fees, which she is paying defendant's counsel at the rate of $100 per week pursuant to the parties' divorce agreement. A-2543-17T2 2 Under Rule 4:49-2, a litigant may move for "rehearing or reconsideration"

of an order or judgment within twenty days of its entry. Such a motion must

include "a statement of the matters or controlling decisions which counsel

believes the court has overlooked or as to which it has erred . . . ." Ibid. The

proper object of such a motion is to correct a court's error or oversight, and not

to "re-argue [a] motion that has already been heard for the purpose of taking the

proverbial second bite of the apple." State v. Fitzsimmons, 286 N.J. Super. 141,

147 (App. Div. 1995).

The trial court properly was not swayed by belated submissions from

defendant on his motion for reconsideration, after retaining counsel. See R.

4:49-2; see also Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div.

1996).

The judge stated on the record that she reviewed all the submissions

previously submitted and those submitted on reconsideration. Defendant

complains that he did not receive notice prior to the November 16, 2017 counsel

fee decision. As the judge pointed out, that date was not an opportunity for

further argument. Neither party appeared before the court on November 16,

2017.

A-2543-17T2 3 Rule 5:3-5(c) and Rule 4:42-9 govern attorney fee awards in Family

matters. In Mani v. Mani, 183 N.J. 70, 94-95 (2005), the Supreme Court

summarized the attorney fee inquiry as follows:

[I]n awarding counsel fees, the 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.

[Ibid.]

The judge considered the Mani factors.

In concluding defendant had litigated in bad faith, the judge found he

involved the children in the financial disputes between the parties and also

distanced the children from their mother by denying plaintiff parenting time.

The judge appointed a mediator and a parenting time supervisor to facilitate

contact between plaintiff and the children. She found that, after defendant

sought an increase in child support, although given numerous opportunities to

provide current income information, he failed to do so. See R. 5:5-4(a)

(requiring a party to provide current financial information when making a

motion for modification). He also sought reimbursement of expenses when none

were owing.

A-2543-17T2 4 The judge reviewed the credentials of plaintiff's counsel, and the

reasonableness of both her hourly rate and the number of hours expended. The

judge's decision to deny reconsideration is not a clear abuse of discretion and is

supported by the record. We affirm substantially for the reasons expressed on

the record at the denial of reconsideration.

If defendant seeks relief, the court should consider a motion to deduct his

counsel fees from the outstanding fees plaintiff owes defense counsel. We

express no opinion as to the result of such an application.

Affirmed.

A-2543-17T2 5