Nagla Abouelenein v. Nabil Sabbahi

• Court: New Jersey Superior Court Appellate Division
• Decided: April 17, 2024
• Docket: A-2629-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2629-21

NAGLA ABOUELENEIN,

Plaintiff-Respondent,

v.

NABIL SABBAHI,

Defendant-Appellant. __________________________

Submitted December 5, 2023 – Decided April 17, 2024

Before Judges Sumners and Rose.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1570-19.

Arndt, Sutak & Miceli, LLC, attorneys for appellant (Lauren Ann Miceli and Alison J. Sutak, on the briefs).

Sidoti Law Firm, LLC, attorneys for respondent (F. Thomas Sidoti, on the brief).

PER CURIAM The parties divorced following an almost thirty-six-year marriage.

Defendant appeals provisions of the August 25, 2022 amended final judgment

of divorce (AFJOD)1 awarding equitable distribution of property in Egypt, the

parties' country of origin, to plaintiff and requiring him to pay pendente lite

arrears and plaintiff's attorney's fees and costs ( "attorney's fees"). Defendant

contends the distribution of marital funds was not supported by credible

evidence in the record; the pendente lite award failed to credit payments he

made; and the attorney's fees award was an abuse of discretion. We disagree

and affirm substantially for the thoughtful reasons set forth in Family Part Judge

Andrea J. Sullivan's statement of reasons.

Our review of a Family Part order is limited. See Cesare v. Cesare, 154

N.J. 394, 411 (1998). We "review [a] Family Part judge's findings in accordance

with a deferential standard of review, recognizing the court's 'special jurisdiction

and expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-

83 (2016) (quoting Cesare, 154 N.J. at 413). Such deference is particularly

proper "when the evidence is largely testimonial and involves questions of

credibility." Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to

1 After defendant initially appealed the final judgment of divorce, we granted his motion for temporary remand and retained jurisdiction. On remand, the AFJOD was entered, which defendant now challenges. A-2629-21 2 J.W.D., 149 N.J. 108, 117 (1997)). "Thus, 'findings by the trial [judge] are

binding on appeal when supported by adequate, substantial, credible evidence.'"

Thieme, 227 N.J. at 283 (quoting Cesare, 154 N.J. at 411-12). "Only when the

trial [judge's] conclusions are so 'clearly mistaken' or 'wide of the mark' should

we interfere." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting N.J. Div. of

Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). However, we review

legal issues de novo. Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).

Distribution of Marital Assets

Defendant challenges the AFJOD's distribution to plaintiff of two

properties he owned in Egypt: No. 147 Vista Marina Village in North Coast and

No. 4 Southern Lotus, Fifth Settlement––a twelve-unit apartment building––in

New Cairo City.2 Defendant argues the judge erred in not crediting his

testimony that he did not own the Egyptian properties but crediting plaintiff's

evidence that he owned the properties absent proof he transferred money from

marital accounts to purchase the properties or of deeds showing his ownership

interest. This notwithstanding, according to defendant, the judge relied on the

2 Defendant does not contest plaintiff's award of $68,276.50, representing fifty percent of two marital bank accounts he dissipated, or one of the two City of Newark taxicab medallions he owned. The judge awarded two other Egyptian properties to defendant. A-2629-21 3 same trial evidence to reject plaintiff's claim that he owned other Egyptian

properties. Defendant argues plaintiff presented no evidence demonstrating the

properties were sold during the parties' marriage. Defendant argues the judge

erred in allowing plaintiff's expert to present a net opinion regarding the

properties' value, asserting there was no evidence relating to the customs or

legality of real estate transactions in Egypt, particularly plaintiff's allegation that

no deeds exist for properties in certain locations. Additionally, defendant asserts

the judge prevented him from presenting rebuttal witnesses addressing issues

raised during trial.

We are unpersuaded by defendant's contentions. Our review of the record

reveals the judge's equitable distribution award was a proper exercise of her

broad discretion, Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012), and

reasonably based on "the evidence presented, and [was] . . . not distorted by

legal or factual mistake," La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div.

2000). The credible evidence in the record supports the judge's determination

that defendant owned properties subject to equitable distribution, and she did

not abuse her discretion in precluding defendant's purported evidence to refute

plaintiff's evidence regarding the properties.

A-2629-21 4 Plaintiff alleged defendant transferred marital assets to purchase property

in Egypt, including "two rental beach apartments in Alexandria, an apartment in

Cairo, a [twelve]-unit residential apartment complex in Cairo that was under

construction at the time of the [divorce] [c]omplaint, two commercial properties

rented out to stores, agricultural land, and another undeveloped plot of land. "

The judge found defendant "used the bulk of the marital estate" to purchase No.

147 Vista Marina Village; No. 4 Southern Lotus, Fifth Settlement; No. 328 at

El Zomoroda Village in North Coast; and No. 7 Lotus District Fifth Settlement

in New Cairo City. The judge directed defendant to transfer title to the first two

properties to plaintiff.

These factual findings were based on the judge's determination that

plaintiff presented the following credible evidence: her testimony as well as

that of the parties' daughter and a family friend, who all indicated defendant

admitted to ownership of the properties; photos of the properties; an audio

recording wherein defendant admitted ownership; and plaintiff's real estate

expert's testimony regarding the appraised values of the properties, except

A-2629-21 5 Cornish Tura, Police Building;3 and Egyptian "government records showing

[d]efendant's ownership and [construction] efforts." The judge found plaintiff

"answer[ed] questions on both direct and cross[-]examination carefully, [made]

good eye contact with the examiner and the [c]ourt[,] and overall appeared to

try to respond fully and completely." In contrast, the judge discredited

defendant's testimony, finding he "utterly lacked credibility," and "[h]is failure

to answer discovery adequately, and late additions of witnesses (mid[-]trial),

added to the . . . conclusion that [d]efendant deliberately failed to provide

discovery for the purpose of evading [p]laintiff's ability to make her proofs."

The judge also found defendant "was evasive in his response to

cross[-]examination and to questions posed by the [c]ourt."

For example, during the trial, defendant recanted his previous claim that

he did not own the property where the twelve-unit apartment building was under

construction, admitting he had owned it but sold it in 2015. Defendant's

testimony was belied on cross-examination when he was presented government

documents showing his ownership interest and construction license to the

3 The judge determined there was insufficient evidence showing defendant owned Cornish Tura, Police Building; there was no address or appraisal of the property.

A-2629-21 6 building after 2015. He countered that the property's buyer applied for a

construction license in his name, even though he no longer owned the property.

Without any factual proof of this fraudulent activity, defendant's testimony is

incredulous.

Regarding plaintiff's expert witness, the judge did not allow plaintiff to

present an inadmissible net opinion regarding the value of the Egyptian property.

The expert's testimony was supported by factual evidence. See Townsend v.

Pierre, 221 N.J. 36, 53-54 (2015) (citing Polzo v. County of Essex, 196 N.J. 569,

583 (2008)); N.J.R.E. 703. The expert, an appraiser with the Egyptian Economic

Courts and Ministry of Supply and Internal Trade for thirty years, set forth his

methodology in valuing the properties, reviewed pertinent documents, and

visited the properties. In short, beyond giving conclusions, the expert gave "'the

why and wherefore' that support[ed] [his] opinion." Townsend, 221 N.J. at 53-

54 (citation omitted). Consequently, the judge did not abuse her discretion in

admitting the expert's testimony.

With respect to the judge's denial of defendant's attempt to present two

witnesses to "testi[fy] as to [the properties'] ownership and value after the trial

commenced," the ruling should stand. The judge rejected defendant's contention

that the witnesses should have been allowed to testify without prior notification

A-2629-21 7 because they were rebuttal witnesses. They were not. Plaintiff disclosed her

witnesses and the scope of their testimony, making defendant fully aware of her

evidence prior to trial. In his pretrial submission, defendant indicated he would

be the only witness to testify on his behalf and, in his discovery responses, he

did not disclose he would present any witnesses to testify regarding the Egyptian

properties. Defendant cannot present witnesses through the backdoor, claiming

they were for "rebuttal" purposes because he did not disclose them prior to trial.

His proposed witnesses should have been disclosed up front, in discovery. As

the court properly determined, defendant's late submission of his witnesses was

"inexcusable" and prejudicial to plaintiff. Defendant fails to show the judge's

ruling constituted an abuse of discretion.

Pendente Lite Arrears

Prior to trial, the judge ordered defendant to pay plaintiff a monthly total

of $4,338 for pendente lite support: Schedule A – $2,544 per month; Schedule

B – $590 per month; and an additional $280 per week. At trial, plaintiff

withdrew her request for alimony. The judge found defendant's pendente lite

arrears totaled $117,126. Defendant contends the judge erred in modifying the

initial pendente lite award by $420 per week in unallocated support and not

adjusting his arrears due to his decreased income caused by the pandemic. He

A-2629-21 8 claims his sole monthly income source of $1,872 in social security disability

income (SSDI), totaling $22,488 annually, is "on par and less than the $25,000

imputed to . . . [p]laintiff for purposes of calculating pendente lite support." He

contends the income from his taxicab medallions, permits for driving taxicabs,

"terminated due to the pandemic." He argues the judge ignored his support

obligation to plaintiff was eighty-one percent of his total income. He also asserts

the judge failed to recognize that his reduced income entitled him to a Mallamo4

credit. We disagree with these contentions.

Pendente lite awards consist of "temporary financial support pending the

resolution of the [matrimonial litigation]" which "are subject to modification

prior to entry of final judgment and at the time of entry of final judgment."

Mallamo, 280 N.J. Super. at 12 (citations omitted). Mallamo authorizes a trial

judge to adjust a pretrial award after trial because, after considering the evidence

and credibility of the parties, the judge is in a better position to determine

whether the means of the parties align with the pretrial award. Id. at 16.

However, Mallamo does not require courts to re-assess pretrial orders after trial;

the decision only requires that a court may adjust a pretrial order after trial

without violating the prohibition against retroactive modification, N.J.S.A.

4 Mallamo v. Mallamo, 280 N.J. Super. 8, 9 (App. Div. 1995). A-2629-21 9 2A:17-56.23a. 280 N.J. Super. at 17. Applying this standard, the trial judge,

based on her credible findings and in exercise of her discretion, did not err in

refusing to adjust the pendente lite award through a Mallamo credit to defendant.

Judge Sullivan determined "[d]efendant paid only a portion of the

pendente lite support he was ordered to pay and persistently violated . . . [court]

[o]rders [to make payments] for two years." The judge rejected defendant's

request to vacate his arrears, finding "his vague and incredible testimony about

his income, his assets[,] and the assets [he] transferred to Egypt . . . [did not]

entitle[] [him] to such relief." The judge determined the taxicab business did

not shut down during the pandemic.

The record reveals defendant's medallions were used for taxicabs

operating and producing income during the pandemic: a taxicab was involved

in a December 2020 accident and a taxicab was issued a ticket for a toll violation

in August 2021. The record further undermines defendant's credibility regarding

his income. His case information statement indicated total monthly expenses of

$2,699 and a total monthly income of $1,872 from SSDI. During cross-

examination, however, defendant proffered no reasonable explanation how his

expenses could be met with that limited income absent corresponding debt.

While plaintiff may not have been able to pinpoint with specificity the amount

A-2629-21 10 of defendant's total income, the judge had ample support for finding defendant's

insufficient income claims lacked merit and he could pay the pendente lite

arrears.

Attorney's Fees

The AFJOD incorporates the judge's order requiring defendant to pay

plaintiff's attorney's fees of $45,570. Plaintiff had sought $60,700. Defendant

contends the judge misapplied Rule 5:3-5(c) and Mani v. Mani, 183 N.J. 70, 94

(2005), by failing to consider plaintiff's bad faith during the litigation, his dire

financial situation caused by the pandemic, and plaintiff's better ability to pay

her attorney's fees by the time the trial has ended. He further argues three prior

orders requiring him to pay plaintiff's additional attorney's fees constituted

"double dipp[ing]," given the AFJOD only acknowledges plaintiff receiving one

advance. Defendant, therefore, asserts plaintiff was unjustly enriched by the

attorney's fee award, which failed to address the fees he previously paid—a

factor to be considered under Rule 5:3-5(c). We reject these arguments.

We will not disturb a family judge's determination as to counsel fees

except for the "'rarest occasion,' . . . only because of clear abuse of discretion."

Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine

v. Pantzer, 141 N.J. 292, 317 (1995)). "[A]n abuse of discretion 'arises when a

A-2629-21 11 decision is made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" State v. R.Y., 242

N.J. 48, 65 (2020) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002)) (internal quotation marks omitted). "An abuse of discretion also arises

when 'the discretionary act was not premised upon consideration of all relevant

factors, was based upon consideration of irrelevant or inappropriate factors, or

amounts to a clear error in judgment.'" Moraes v. Wesler, 439 N.J. Super. 375,

378 (App. Div. 2015) (quoting Masone v. Levine, 382 N.J. Super. 181, 193

(App. Div. 2005)).

A family judge's award of attorney's fees is subject to the provisions of

Rule 4:42-9(a)(1), which provides "[i]n a family action, a fee allowance both

pendente lite and on final determination may be made pursuant to R. 5:3-5(c)."

The judge must consider the following 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;

A-2629-21 12 (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.

[R. 5:3-5(c).]

Judge Sullivan correctly analyzed these factors in her written statement of

reasons when awarding plaintiff attorney's fees, applying the same findings she

made concerning her distribution of marital assets and pendente lite arrears

rulings. Defendant was not in the dire financial situation he claimed but in a

much better financial position than plaintiff, thus enabling him to afford her

attorney's fees. Defendant's bad faith––dissipation of marital assets in violation

of court order, failure to comply with other court orders, and attempt to conceal

ownership of the Egyptian properties––constituted a "significant delay, time and

expense" in the litigation. Defendant did not submit a certification of the

attorney's fees he paid as ordered by the court. Contrary to defendant's assertion,

the judge acknowledged defendant's prior advances paying plaintiff's attorney's

fees and additional payments of $36,000. Simply put, there is no indication the

judge abused her discretion in awarding plaintiff attorney's fees.

A-2629-21 13 To the extent we have not addressed any of defendant's arguments, it is

because they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

A-2629-21 14