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Fawzy v. Fawzy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 13, 2009

CHRISTINE SABA FAWZY, PLAINTIFF-RESPONDENT,
v.
SAMIH M. FAWZY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-595-06E.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2009

Before Judges Gilroy and Simonelli.

Defendant Samih Fawzy appeals from the April 30, 2008 order of the Family Part denying his motion to compel plaintiff Christine Saba Fawzy to pay him $1041.37 representing one-half of the real estate tax refund for the parties' former marital home. Defendant also appeals from the August 7, 2008 order denying his motion for reconsideration and requiring him to pay $5951.49 in counsel fees for the period July to September 2007. We reverse.

Pursuant to paragraph 8a of a second amended judgment of divorce, entered August 3, 2007, defendant would receive credit for any reduction in the mortgage principal resulting from his payment of the mortgage on the marital home located in the Township of South Brunswick, which was then under contract to be sold. Paragraph 8e provided that the parties would equally share the balance of the net proceeds from the sale.

Subsequent to the closing of title, the tax collector issued a check in the amount of $2082.75, representing the return of a duplicate property tax payment made at the closing for the 2007 third-quarter. The check was made payable jointly to the parties and sent to plaintiff. Plaintiff cashed the check and gave defendant one-half, claiming that she was entitled to the other half because the monies represented the refund of "a tax escrow." Defendant filed a motion, seeking to compel plaintiff to pay him the other half.

Plaintiff filed a cross-motion, seeking, in part, to compel defendant to pay counsel fees of $5951.49 pursuant to paragraph 22 of an arbitration award, which states as follows:

Additional Counsel Fees: If additional counsel fees are incurred by either party as a result of non-compliance with the terms of this Arbitration Award and/or Post-Judgment Order, and if it is determined by a Court or arbitrator that a party has not complied with the terms of this Arbitration Award, and/or Post-Judgment Order, the non-complying party shall be responsible for the other party's counsel fees.

Plaintiff claimed entitlement to counsel fees based on what she deemed were defendant's frivolous motions filed from July to September 2007.

Without oral argument, the trial judge denied defendant's motion, concluding that pursuant to paragraph 8e of the second judgment of divorce, the balance of the sale proceeds would be divided equally between the parties. The judge also denied plaintiff's cross-motion for counsel fees without prejudice due to her failure to provide a copy of the arbitration award.

Plaintiff filed a motion for reconsideration and defendant filed a cross-motion for reconsideration. Without oral argument, relying on paragraph 22 of the arbitration award, the judge granted plaintiff's motion and awarded $5951.49 representing counsel fees she incurred from July to September 2007. The judge also denied defendant's cross-motion, finding that defendant failed to meet the requirements for reconsideration.

Our review of a trial judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Based on our review, we conclude that the record does not support the award of counsel fees to plaintiff. There is no finding that defendant failed to comply with the terms of the arbitration award and/or any post-judgment order, and no finding that his motions were frivolous.

Also, the $2082.75 check issued by the tax collector represented the return of a duplicate payment of the 2007 third-quarter property taxes. It was not a tax escrow refund. Because defendant had paid those property taxes, he is entitled to the entire amount.

Reversed.

20091113

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