November 16, 2007
TEHMINA ALI, PLAINTIFF-RESPONDENT,
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).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 testified that he advised a paralegal in plaintiff counsel's law firm that he would not be attending the deposition, which was disputed.
The court found defendant did not seek any relief from the trial or appellate courts with regard to the order and thus found there was willful non-compliance by appellant and failure to communicate in a meaningful way with plaintiff's counsel regarding the scheduling of the deposition. The court sanctioned appellant by requiring him to reimburse plaintiff's counsel for his time and expense. Appellant does not contest the amount of the award, nor does he contend it is excessive. Appellant challenges the court's decision to impose the sanction because he believes his conduct was justified. He also asserts error in the award of a counsel fee as part of his continuing unsupported diatribe against plaintiff's attorney and his law firm wherein he claims they assisted plaintiff in committing perjury and diverting family assets. We discern no abuse of discretion in the court's ruling under the circumstances of this case. R. 4:23-4 (permitting the court to order a party, who has been served with a proper notice and unjustifiably fails to appear at a deposition, to pay the reasonable expenses caused by the failure, including attorneys fees); see also Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. l988) (noting that an appellate court generally will not interfere with discretionary rules involving discovery, including imposition of sanctions, unless it appears an injustice has been done).
II. Appeal A-3820-05T2 (January l2, 2006, February 3, 2006, and February l4, 2006 orders)
In the context of his appeal of these three court orders, appellant appears to be arguing that the court erred by failing to dismiss the divorce action because plaintiff, her attorney, and the New Jersey State Police perpetrated fraud on the court. More specifically, he claims plaintiff and her attorney made intentional misrepresentations on her January 1999 and December 5, 2005 CIS; stole family money from an account in the Sussex County State Bank; and filed false documents and pleadings resulting in appellant's malicious prosecution and illegal arrests by the State Police and his incarcerations in December l998. Appellant also argues the court erred by awarding alimony to plaintiff.
The arguments raised in this appeal are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). The bulk of these arguments are not germane to these orders and are merely attempts to re-litigate matters previously decided on the merits by the trial court and, for the most part, rejected in the numerous appeals filed by appellant.
III. Appeal A-5198-05T2 (May 8, 2006 order)
The court dismissed appellant's order to show cause seeking to modify prior child support orders "as improperly filed with restraints," and explained in a handwritten comment on the order that "defendant is restrained from sending papers via fax to this Court [because it] received over l50 sheets of paper on this purported application. All filings to be made with the Clerk of this Court." Appellant contends the court erred in denying his order to show cause, and more specifically, it abused its discretion in: (1) refusing to conduct a plenary hearing in violation of N.J.S.A. 2A:34-23; (2) failing to consider his increased expenses in traveling from Pennsylvania to meet with nineteen-year-old Anila's employer regarding her work-related difficulties and providing some extra financial assistance to Anila and paying some expenses for his teenage stepson from his remarriage; (3) ignoring his daughter's "best interests" by permitting plaintiff to evade her shared responsibility toward her, morally and financially, and placing their daughter in the position of having to work sixteen hours without a break; and (4) making a "naked conclusion" and placing restraints on him in response to receiving l50 pages by facsimile. We find these arguments equally unavailing.
Appellant has appeared in court on his own behalf since the inception of this lengthy litigation. A pro se litigant may be entitled to some indulgence but is not entitled to greater rights than litigants who are represented. Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. l982). The trial court was well within its discretion to reject appellant's papers as improperly filed with chambers. See R. 1:5-6(b)(4) (providing that original motion papers in actions in the Chancery Division, Family Part, must be filed with the deputy clerk of the Superior Court in the county of venue if the action is for dissolution of marriage). Although a judge may accept papers for filing, R. 1:5-6(b), he or she is not required to do so. In addition, there is no question that faxing 150 pages to the judge's office is egregious conduct, whether it is by a litigant or an attorney, clearly justifying future restrictions.
As a practical matter, the judge's refusal to accept the order to show cause did not prevent appellant from filing the papers with the clerk's office but he chose not to pursue that route and instead filed this appeal. Even considering the merits, however, we are satisfied appellant's application did not demonstrate sufficient changed circumstances to warrant a plenary hearing for consideration of whether to modify child support under Lepis v. Lepis, 83 N.J. 139 (1980).