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Shah v. Nahar

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 27, 2008

SHEFALI SHAH, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
AMAN NAHAR, DEFENDANT-APPELLANT/CROSS-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FV-14-973-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 16, 2008

Before Judges Stern and Waugh.

Defendant Aman Nahar appeals from the entry of a final restraining order (FRO) against him following a bench trial on claims of domestic violence, N.J.S.A. 2C:25-17 to -35, brought by plaintiff Shefali Shah, with whom he had a dating relationship. The trial judge found that Nahar had committed acts of domestic violence, as that term is defined in N.J.S.A. 2C:25-19(a), by harassing Shah as defined in N.J.S.A. 2C:33-4(a) and -4(c). Nahar also appeals the trial court's award of counsel fees pursuant to N.J.S.A. 2C:25-29(b)(4), as well as the denial of his motion for reconsideration on that issue. Shah cross-appeals from the trial judge's failure to address her cross-motion for counsel fees in connection with Nahar's unsuccessful motion for reconsideration.

We have carefully reviewed the record on this appeal and affirm the entry of the FRO and the award of counsel fees to Shah for the reasons set forth in the comprehensive oral decision delivered by Judge Thomas L. Weisenbeck. We have determined that the points raised by Nahar are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only the following. Our scope of review of the trial judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Id. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. We are satisfied that Judge Weisenbeck's factual findings are fully supported by the record, as is his decision to credit the testimony of Shah and, where inconsistent with hers, to reject the testimony of Nahar. Based upon those factual findings, his legal conclusions were sound.

With respect to the award of counsel fees, we note that they are considered compensatory damages in the context of a domestic violence action. McGowan v. O'Rourke, 391 N.J. Super. 502, 507 (App. Div. 2007). Consequently, the considerations that normally apply in a matrimonial action, such as the relative need of the parties, do not apply. Ibid. As long as the fees are reasonable and supported by an affidavit of services consistent with the provisions of Rule 4:42-9(b), we would only disturb a trial court's award of counsel fees because of "'a clear abuse of discretion.'" McGowan, supra, 391 N.J. Super. at 508 (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). We see no reason to disturb Judge Weisenbeck's determination, especially in light of the fact that the quantum of fees incurred by both parties was comparable.

On the cross-appeal, we remand to the trial court for consideration of the cross-motion for counsel fees on the reconsideration motion.

Affirmed in part and remanded in part.

20081027

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