April 27, 2009
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-19-307-1999.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 28, 2009
Before Judges A. A. Rodríguez and Payne.
This appeal concerns a post-divorce hearing conducted on July 5, 2007 in which a Family Part judge (1) struck defendant's brief as incomprehensible; (2) denied reconsideration of the judge's May 15, 2007 order requiring that defendant pay the counsel fees incurred by plaintiff in the matrimonial action and its aftermath; (3) found no misappropriation of child support funds by plaintiff's attorneys; and (4) denied counsel fees to defendant, a pro se litigant.
On appeal, defendant challenges the determination of the Family Part judge that plaintiff's attorneys had not misappropriated defendant's child support payment. In his brief on appeal, defendant presents the following questions, which we set forth verbatim:
Issue No 1
DOES PLAINTIFF LAW FIRM MISAPPROPRIATED DEFENDANT CHECK?
Issue No 2
Does it duty of the every judge to abide by and enforce the provision of the code of judicial conduct?
Issue No 3
Does justice is right of all men and private property of none?
Issue No 4
Does judge take oath to do justice not to perpetuate error?
The factual basis for defendant's arguments is unclear to us. In his motion in the Family Part, defendant had argued that a check for child support in the amount of $250.15 had been misappropriated by plaintiff's counsel, the law firm of Wasserman & Schachman. In support of that argument, defendant certified that:
3. In September, 2000, I hand delivered Wasserman and Schachman firm a check of $250.15 for child support. Exhibit 11.
4. Instead of giving this money to their client for child support, Wasserman and Schachman firm misappropriated these funds and deprived their client from Child support funds.
Defendant's position was not accepted by the motion judge, who ruled:
To the extent that you have sought a reconsideration of the prior orders that were rendered by this Court dealing with the matters set forth in the May 15th 2007 order following a plenary hearing, I find no reason in fact or law to disturb any of the findings which were made as a result of the extensive hearing that was held and the evidence presented. I am satisfied that that application should be denied in its entirety.
Secondly, there is no basis upon which to adjudge Mr. Wasserman as having - or his firm as having misappropriated child support funds. This a a scurrilous accusation. It is something which was dealt with extensively at the plenary hearing. There is no - simply no basis in fact or law to reach that conclusion.
At oral argument on appeal, defendant first offered the argument regarding misappropriation of his child support payment that he had made in the Family Part. However, defendant then argued before us, in a manner inconsistent with his position in the Family Part and his initial position on appeal that the check was submitted as payment of child support, that he had received a check from PNC Mortgage for $250.15, made payable to plaintiff and defendant. In order to obtain plaintiff's endorsement, defendant sent the partially endorsed check to her attorneys with instructions that one-half be returned to defendant. Instead, the attorneys deposited the entire check in the firm's escrow account. He claimed that the deposit constituted misappropriation of funds owed to him.
The record submitted by defendant on appeal contains a copy of a PNC Mortgage check, dated September 6, 2000, in the amount of $250.15, made payable to Shaukat and Tehmina Ali, bearing the legend, "for payment of escrow to mortgagor." The check bears the endorsement of Tehmina Ali, followed by the endorsement of Shaukat Ali. Additionally, the check is stamped: "Pay to the order of PNC Bank, N.A. For deposit only. Wasserman & Schachman attorney escrow account 8101176183." A bank notation indicates the paid date of the check as January 29, 2001. There is no transmittal letter in the record, and it is therefore impossible to verify what, if any, instructions were given by defendant regarding the negotiation of the check and payment of its proceeds.
If we view defendant's arguments as challenging the Family Part judge's determination that Wasserman & Schachman had not misappropriated defendant's child support payment, we must affirm. We note that the judge's determination was based upon evidence presented in connection with the May 15, 2007 hearing. We have been offered nothing to suggest that the ruling was not based upon competent evidence in the record made at that hearing.*fn1 Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). In that regard, we afford great deference to the judge's credibility determinations as they relate to defendant's testimony on the issue of his payment of child support. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). As a result, we decline to find defendant's position on the child support issue credible, when the hearing judge did not. Moreover, we note that, on defendant's appeal from the order resulting from the May 15 hearing, we affirmed. Ali v. Ali, No. A-5013-06T1 (App. Div. November 14, 2008). We decline to alter our conclusion as the result of defendant's present collateral attack.
If we consider defendant's alternative argument that the check was submitted to Wasserman & Schachman with instructions that one-half of the proceeds be returned to defendant, we reach the same result. Because the argument was not raised before the Family Part judge, it is not cognizable here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, in the absence of sworn testimony or documents demonstrating defendant's instructions to counsel, we find defendant's position to lack evidentiary support.