On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Sussex County, FM-19-307-1999.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Payne.
In these appeals calendared back-to-back for purposes of oral argument and consolidated in one opinion, defendant Shaukat Ali appeals from two post-judgment matrimonial orders dated August 4, 2006 and October 6, 2006. 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 a son born in l993. Plaintiff was awarded custody of the minor children and defendant was required to pay child support. On October 4, 2005, defendant was ordered to contribute 80% of college tuition and the cost of books for Anila upon documents being delivered indicating such costs. By order of April 21, 2006, among other provisions, defendant was ordered to pay plaintiff, within thirty days, "$3,742.20 representing moneys owed to her to reimburse her for 80% of college expenses of Anila Ali as previously ordered by this Court on October 4, 2005." Defendant appealed from that order, and on August 13, 2007, we affirmed the order in an unpublished opinion. Ali v. Ali, Docket No. A-5195-05T2. We have issued five other unpublished opinions in appellant's prior matrimonial appeals.*fn2 There are also five other appeals pending.*fn3
An order was entered on June 23, 2006, erroneously dated June 2, 2005 and corrected by order of July 11, 2006, requiring:
(1) defendant to reimburse plaintiff the $3,742.20 as previously ordered, by July 10, 2006, or appear in court on that date to be incarcerated, and (2) defendant to provide the court and plaintiff's counsel with the names, rents paid by, and leases of any tenants of the building and garage located at 170 St. Paul Avenue, Jersey City that was owned by defendant. The order also indicated that "the cross-motion of defendant is dismissed as defective and unintelligible." The hearing was adjourned to August 4, 2006. Defendant filed a motion for reconsideration on June 25, 2006, returnable on August 4, seeking sanctions from the firm representing plaintiff "for filing false certification of attorney fees for money received on behalf of Shaukat Ali, and did not disclose attorney fee received from other parties." On July 25, 2006, defendant filed a motion for reconsideration returnable on August 4, requesting a stay of the June 23, 2006 order and eleven other items of relief unrelated to that order.
At the hearing Friday morning, August 4, defendant appeared to argue that plaintiff's counsel did not credit funds received from an execution on defendant's Thrift Savings Plan on January 7, 2003 against defendant's counsel fee obligation. Judge Gannon noted that he had previously entered multiple orders in aid of litigant's rights to execute against certain monies of defendant to pay for counsel fees. He had also ordered plaintiff's counsel to file an accounting of all monies received from defendant or on account of defendant's obligation prior to disbursement.*fn4 The judge found defendant to be willfully noncompliant with the court order to reimburse plaintiff his share of the tuition expense for the parties' daughter and in failing to provide a required list of tenants and leases as previously ordered. Defendant continued to argue the merits of the issue decided by the court in October 2005 -- that his daughter was emancipated, his former wife's proofs were deficient, he did not owe that amount of money, and he had filed an appeal of the order. The judge was satisfied defendant had willfully violated litigant's rights, R. 1:10-3, R. 5:3-7(b), and directed he be incarcerated. Judge Gannon gave defendant every opportunity to make payment or a reasonable proposal for payment of his outstanding support obligation and to promise to obey the court order; he brought defendant back into court that afternoon prior to processing him for jail, but to no avail, as defendant continued to argue the merits of the case.
Defendant spent the weekend in jail and appeared back in court Monday morning, August 7. He had retained an attorney and reached an agreement on the record to provide previously ordered tenant information and pay reimbursement in $500 monthly installments, commencing on or before August l4, 2006. The agreement was memorialized in an order dated August 7, 2006, and defendant was immediately released from custody.
Unfortunately, once released, defendant failed to make his August or September installment payments. During the September 22, 2006 hearing on cross-motions, plaintiff sought enforcement of the tuition order while defendant challenged the debt and sought the daughter's emancipation.*fn5 Plaintiff's attorney represented that the daughter was still attending school and that plaintiff was paying tuition, supporting that position by producing a tuition payment plan and a September l8 letter addressed to the daughter confirming her student status and lack of financial aid. Judge Gannon found defendant "defaulted on his obligations under the [August 7] order" negotiated by his attorney. The judge further commented that defendant had the financial ability to hire an attorney at that time. Judge Gannon expressly informed defendant he had until October 6 to bring the tuition installments current or demonstrate why he should not be incarcerated. The judge indicated he would appoint an attorney as trustee for the receipt of rent payments, after deduction of the mortgage, to be used in satisfaction of previously ordered counsel fees due plaintiff's attorney. However, when defendant complained about the high expenses, the judge directed defendant to bring a complete list of the property expenses in addition to the previously ordered rental documents.
On October 2, 2006, defendant filed a motion to terminate child support for his daughter and for a variety of other relief. He supported his motion with a thirty-four page accountant's report and voluminous other attachments, apparently totaling 167 pages. Defendant appeared on October 6 with the accountant and unsuccessfully argued she should be permitted to testify about the report. Judge Gannon noted that defendant did not file his motion timely and if it were properly filed with the appropriate fee, the motion would be scheduled in the ordinary cycle. See R. 5:5-4(c) (a post-judgment motion in Family Part requires twenty-four days' notice). Defendant continued to challenge the tuition order's basis and also contended he had no money to pay it despite a salary of $83,000 from the federal government. Plaintiff's counsel offered evidence that defendant received rental payments of $19,000 in the prior year. The judge found defendant had the present financial ability to make the $500 per month installments he had agreed to, with the assistance of counsel, on his support obligation ordered by the court a year ago. The judge further found defendant had chosen not to do so out of stubbornness or flagrant disregard of the court order. Accordingly, the judge issued an order dated October 6, 2007 that defendant be incarcerated for violating litigant's rights until he paid the entire $3,742.20 to plaintiff's attorney. Defendant apparently paid the money that day and was released. These appeals ensued.
On appeal, defendant contends the court violated his due process rights in entering the challenged orders. He claims the August 4 hearing was scheduled in response to his motion to sanction plaintiff's attorney for filing allegedly false certifications of fees, not to enforce litigant's rights against defendant. Defendant continues to dispute the merits of the tuition contribution order, claiming his daughter was emancipated and plaintiff did not pay the entire amount for which she sought reimbursement. Defendant also argues his accountant should have been permitted to testify about his expenses and challenges the judge's findings on his ability to pay and the resulting incarceration orders.
We asked defendant at oral argument what remedies he was seeking on appeal. He submitted ...