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Kotbi v. Kotbi

August 27, 2008

SOFKA V. KOTBI, PLAINTIFF-APPELLANT,
v.
MOHAMED KOTBI, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1717-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2008

Before Judges Yannotti and LeWinn.

Plaintiff appeals from provisions of the April 13, 2007 order of the Family Part denying her requests for various forms of relief from the final judgment of divorce issued on January 26, 2007. Specifically, plaintiff seeks a new trial on issues of alimony, child support, equitable distribution and counsel fees.*fn1 For the reasons that follow, we reverse and remand for a new trial on alimony, child support, equitable distribution and counsel fees.

The parties were married on August 5, 1997. Two children were born of the marriage. The record does not disclose the date on which plaintiff filed her complaint for divorce. However, a divorce trial was held on December 19, 2006.

At the outset of trial, plaintiff's counsel stated that the parties "only have two assets, the house, and the . . . pension." Therefore, counsel stated, the only remaining issues were parenting time and alimony.

Plaintiff testified that she has been employed as a real estate appraiser since 2003. Plaintiff reviewed the parties' federal income tax returns for 2003, 2004 and 2005. The record reflects that the parties had joint income of $124,985 in 2005. Plaintiff testified that, of that amount, $14,746 represented her net earnings.

When plaintiff stated that the tax returns did not accurately represent her income, counsel asked: "How much is your income?" Plaintiff responded: "I'm not really sure, but it's somewhere between [$]50 and [$]60,000." Plaintiff testified that she received a weekly check from her employer, TNC Appraisals; however, no pay stubs were introduced into evidence. Plaintiff testified that, in addition to paying a car lease for her business, she also had to "pay [her] own taxes out of that $60,000[.]"

Plaintiff testified that the parties owned a marital residence; an appraisal valued the property at $411,000. As of the time of trial, the property was listed for sale with an asking price of $419,000; however, no offers to purchase had been made as of that time. The outstanding mortgage balance at the time of trial was $190,664.

Plaintiff testified that she made the monthly mortgage payment of about $1,000. Plaintiff stated that defendant was under a pendente lite order to pay two-thirds of the mortgage, but he had not made those payments. Plaintiff introduced evidence that defendant's arrears on his mortgage payment obligation were $11,906 as of October 20, 2006. Plaintiff testified that she met the monthly mortgage expense by using her paychecks as well as credit cards. Plaintiff sought a credit for defendant's mortgage arrears from her share of the proceeds of sale of the marital residence.

Plaintiff stated that defendant was also under a pendente lite order to pay child support of $490 per week. She testified that defendant's child support arrears were "between five and $6,000." Plaintiff sought a probation department audit to determine the exact amount of the arrears and to receive a credit for that amount upon the sale of the marital residence.

Plaintiff also testified that she had retained a prior attorney and, as of the time of trial, still owed him approximately $9,000. She sought contribution from defendant to those outstanding counsel fees.

On cross-examination, plaintiff acknowledged that in 2005 she had gross income of $73,875. The 2005 tax return listed various business expenses, such as $4,891 for depreciation; $19,564 for the "[c]ost of goods sold"; and $3,358 for "[o]ther expenses[.]" Plaintiff could not explain these figures. Plaintiff stated that when she and defendant separated, her credit card debt was approximately $5,000; however, it had increased to approximately $25,000 because of her need to meet the mortgage payments and other bills without assistance from defendant.

Plaintiff briefly reviewed her case information statement (CIS) at trial. She described some of her current living expenses, but did not testify as to the parties' marital lifestyle. Plaintiff's CIS listed expenses for the "joint marital lifestyle" totaling $12,411 per month. None of those marital lifestyle expenses were addressed at trial.

Plaintiff was asked to describe defendant's employment. She testified:

It is not a regular job, where he can go to work from nine to five. It's . . . banquets at the hotel, and he works breakfast, lunch, and dinner, and whenever there is [a] function there is work.

Whenever there is no function, there is no work. Some weeks he could work ten jobs, . . . meaning ...


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