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Ali v. Ali

November 16, 2007

TEHMINA ALI, PLAINTIFF-RESPONDENT,
v.
SHAUKAT ALI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-307-99 (A-3760-05T2 and A-5198-05T2) and FV-19-270-99 (A-3820-05T2).

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2007

Before Judges Axelrad, Payne and Messano.

In these appeals calendared back-to-back for purposes of oral argument and consolidated in one opinion, defendant Shaukat Ali appeals from several post-judgment matrimonial orders. Specifically, he appeals from the following orders of the Family Part: (1) December 14, 2005 order setting appellant's child support obligation at $325 per week for the parties' two minor children and directing him to pay $2050 for plaintiff's counsel fees and costs incurred in connection with a previously scheduled deposition in which he failed to appear (Docket No. A-3760-05T2); (2) January 12, 2006 order directing appellant to update his Case Information Statement (CIS), plaintiff's counsel to deliver a writ of execution against appellant's Thrift Savings Plan, and appellant to execute any necessary documents to effectuate withdrawal of funds from the plan in accordance with prior court orders; February 3, 2006 order denying appellant's application to vacate a December l9, 2005 order and other orders issued in the case (denying relief from the judgment of divorce, denying a hearing on child custody issues, and denying appellant's request for counsel fees), and awarding plaintiff counsel fees; and February 14, 2006 order denying reconsideration of the February 3 order (Docket No. A-3820-05T2); and (3) May 8, 2006 order denying appellant's order to show cause seeking modification of his child support obligation and imposing restraints (Docket No. A-5198-05T2). We affirm.

The relationship between the parties has already been the subject of extensive litigation. Following several trials,*fn1 a final judgment of divorce was entered on December 31, 2002. At the time, two of the parties' three children were minors, Anila Ali, born in l987, and Mohammad Usman Malik, born in l993. Plaintiff was awarded custody of the minor children and appellant was required to pay child support. Beginning in July 2004, appellant began filing a series of motions for change of custody of the children. In October 2005, the court conducted an in camera interview of Mohammad but declined to interview Anila, who was eighteen at the time. Appellant's motions for change of custody were denied. We have issued five unpublished opinions in appellant's prior matrimonial appeals.*fn2 There are also seven other appeals pending.*fn3

I. Appeal A-3760-05T2 (December 14, 2005 order)

Appellant argues the trial court violated his due process rights by: (1) holding a hearing on child support instead of hearings on his previously filed motions to change custody (July 13, 2004), to vacate the divorce judgment (October 5, 2005), and to reconsider its denial of a custody change and award of counsel fees to plaintiff (October 24, 2005); and (2) deciding the child support issue on a one-sided basis without providing appellant adequate notice of the December l4, 2005 hearing and an opportunity to prepare, and without providing him with a copy of plaintiff's CIS. Appellant also challenges the counsel fee award to plaintiff for his missed deposition.

Appellant's first argument is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). It is irrelevant to the issues in this appeal whether appellant should have been afforded a hearing on claims or issues not before us, some of which were decided adversely in prior appeals. Moreover, the record discloses the court had several hearings, interviewed appellant's son, and gave due consideration to appellant's motion to change custody.

Nor are we persuaded by appellant's other arguments. The evidence shows appellant had more than adequate notice of the child support hearing, was provided with plaintiff's financial information, and had the opportunity to present his own financial information to the court. Moreover, appellant acknowledges he failed to appear at the court-ordered deposition and articulates no basis to support a claim of abuse of discretion by the trial court in imposing a sanction in the nature of a counsel fee award.

On October 4, 2005, the court entered an order granting plaintiff's motion to take appellant's post-judgment discovery deposition to ascertain the availability of income and assets for satisfaction of the outstanding $20,000 due her on prior counsel fee awards. Appellant was directed to appear for his deposition on October l7 at 9:30 a.m. and produce the requested documents. The order further continued custody of the minor children with plaintiff, scheduled a child support hearing for December 9, 2005, and directed the parties to supply updated CISs, 2004 tax returns, and current pay stubs not later than November 30, 2005.

On December 8, 2005, appellant mailed plaintiff and the court copies of his 2004 federal income tax return and three pay stubs. He did not provide an updated CIS. On the same date, plaintiff mailed her updated CIS and 2004 federal income tax return to the court, with a copy to appellant. Because of a snow storm, the court rescheduled the hearing from December 9 to December l4. Appellant was notified and appeared on the rescheduled date. During the hearing appellant acknowledged that he had received the October 4 order. Appellant claimed he had not received plaintiff's updated CIS; he did not, however, ask for an adjournment of the hearing.*fn4 Relying on the information provided by the parties and the child support guidelines, the court found: (1) plaintiff had a gross weekly income of $552; (2) appellant had a gross weekly income of $1870, including rental income; and (3) appellant had a weekly alimony obligation of $250. The court thus allocated the party's respective weekly support obligations for the two children at $116 for plaintiff and $325 for appellant. We discern no due process violation in this proceeding and are satisfied the court considered appropriate factors in setting the parties' child support obligations.

During the hearing plaintiff's counsel also informed the court that appellant did not show up for his October l7 deposition, that appellant did not notify him of the fact, and that he had hired a court reporter and waited for appellant "for an hour in the corridor." Appellant's response for not appearing at the court-ordered deposition was that he was awaiting decision on his interlocutory appeal of the October 4, 2005 order, although he acknowledged he had not received a stay of the order from any court. Appellant also ...


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