June 17, 2010
ARIFUR RAHMAN, PLAINTIFF-RESPONDENT,
OBHI HOSSAIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-964-08G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2010
Before Judges Sabatino and J. N. Harris.
Defendant Obhi Hossain ("the ex-wife") appeals certain aspects of a Final Judgment of Divorce ("FJD") entered by the Family Part on June 19, 2009, following a default proceeding. In particular, the ex-wife seeks to vacate the trial court's disposition of equitable distribution, specifically its directive that the ex-wife refund to plaintiff Arifur Rahman ("the ex-husband"), the sum of $12,500 that had been paid to the ex-wife at the time of their wedding. We affirm.
The pertinent facts may be readily summarized. The parties were married in the State of Maryland on September 9, 2006. It was an arranged marriage, with both parties being of Bangladeshi descent. The ex-husband was from New Jersey and the ex-wife was from South Carolina. At the time of the marriage, both spouses agreed to be united "under the law of Islam." Pursuant to Islamic customs, a sum of $12,500 was paid to the ex-wife as an initial payment of "sadaq" or "mahr" by the ex-husband or his family.*fn1
The marriage was short-lived, and the parties cohabitated only briefly. According to the ex-husband, the ex-wife would sleep throughout the day, frequently take anti-depressants, refused to look for a job, refused to engage in marital relations, and did not sufficiently attend to her personal hygiene. About one year into the marriage, the ex-wife moved back to South Carolina and did not return to New Jersey.
The ex-husband filed a complaint for divorce or annulment in the Family Part in December 2007. The ex-wife, then represented by counsel, filed an answer and counterclaim, but her pleadings were ultimately suppressed and she ended up in default status. The default was not cured and the matter was scheduled by the court for a default hearing, pursuant to Rule 5:5-10, on issues of equitable distribution.
On April 6, 2009, the trial court conducted a default hearing. At that hearing, the ex-wife and her then-attorney*fn2 were present, but, because of the default posture, they did not present proofs or otherwise participate.
The ex-husband presented at the default hearing expert testimony from a New Jersey attorney knowledgeable in Islamic law. The court accepted him as an expert. Among other things, the expert testified that under Islamic law a marriage is a civil contract and that the payment and retention of the sadaq is contingent upon neither party having fault that leads to the termination of the marriage.*fn3 The expert opined that, under Islamic law and customs, the court would have the authority to order the $12,500 initial payment of sadaq to be returned, if it made a finding that the ex-wife was "at fault" in precipitating the divorce. The court also heard testimony from the ex-husband describing the circumstances that preceded the marriage and those which led to its demise.
Following the default hearing, the trial judge issued a letter opinion. In that opinion, the judge denied the ex-husband an annulment, finding that there were no misrepresentations that would suffice to satisfy the statutory grounds for such relief under N.J.S.A. 2A:34-1(1)d. The judge did grant a judgment of divorce to the ex-husband, because of the ex-wife's "failure to engage in marital relations, her unilateral move out of state, and her alleged failure to care for her personal hygiene[,]" all of which the judge determined to constitute extreme cruelty under N.J.S.A. 2A:34-2c.
The judge then turned to the question of the refund of the sadaq. Relying specifically on the uncontroverted testimony of the expert, the court found that the ex-wife's "undisclosed mental illness constituted an impediment to the marriage under Islamic law." Accordingly, the judge granted a judgment of divorce, with a finding of fault on the part of the ex-wife. The judge also found that the ex-wife had "omitted information of grave consequence at the time the marriage was entered into." For these reasons, the judge ordered the ex-wife to return the $12,500 within sixty days.
Lastly, the judge's opinion dealt with other incidental issues of equitable distribution. The judge concluded that the ex-wife was entitled to keep jewelry--which was valued by the parties at $15,000--that was given to the parties' as a joint present at the time of their wedding. However, the ex-wife was required to pay the ex-husband one-half of an appraised value of the jewelry.*fn4
On appeal, the ex-wife raises two arguments in an effort to set aside the trial court's ruling concerning the repayment of the $12,500 and the court's associated finding that she was at fault in precipitating the divorce. First, she contends that the ex-husband's expert on Islamic law had an undisclosed conflict of interest that disqualified him from testifying at the default hearing. Second, she asserts that the trial judge erred in finding that she was at fault in causing the marriage to fail, and thereby the ex-husband did not sustain his burden of proof to recover the sadaq.
Our standard of review is a limited one. Given the Family
Part's special expertise in matrimonial and other family disputes, appellate courts must accord particular deference to the determinations of trial judges hearing such cases. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). The ex-wife argues that the trial judge's determinations in this case nevertheless must be set aside. We disagree.
The ex-wife's allegation of a conflict of interest on the part of the ex-husband's expert is speculative at best. She essentially maintains that the expert had a dual relationship, functioning not only as an expert representing the interests of the ex-husband, but also as an expert (or as a prospective expert) on her own behalf.
The ex-wife asserts in her brief, without citation to any documents or testimony in the record, that "[i]n June and July of 2008, Appellant [the ex-wife] contacted [the expert] to consult with him regarding this litigation and discussed in detail certain issues regarding immigration law and the [s]adaq document, pertaining to the $12,500 purportedly paid to Appellant [the ex-wife] by Respondent [the ex-husband]." Her brief further asserts that "[n]ot only did Appellant and her [former] attorney consult with [the expert] and obtain legal opinions regarding immigration and the issue of Sadaq/Mahr, but counsel did in fact bill Appellant for said consultations." The brief then cites to an April 8, 2008 invoice the ex-wife received from her former attorney--containing a March 19, 2008 billing entry for 0.20 hours reflecting a call from the exwife's counsel to the expert--and a May 12, 2008 invoice--containing an April 1, 2008 billing entry for 0.30 hours stating "Review e[-]mail" and "Spoke with [the expert]."
The ex-wife argues that the expert, because he is an attorney, violated the Rules of Professional Conduct, by allegedly consulting with her as a prospective client and thereafter using unspecified information that he gained from that consultation in a substantially-related matter adverse to her interests. See RPC 1.18(a) and RPC 1.18(b). Based upon this factual premise, the ex-wife contends that the expert's testimony of the default hearing was tainted, and must now be stricken, thereby warranting a remand for a new hearing.
There is not a shred of competent proof in the record to substantiate the ex-wife's conflict-of-interest allegations. When the expert testified at the default hearing, neither the ex-wife nor the attorney then representing her raised any concern to the trial court about the propriety of the expert testifying in the ex-husband's presentation on equitable distribution issues. We are mindful that because the ex-wife was indisputably in default status at the time of the hearing, she and her attorney were foreclosed from adducing proofs at the hearing. Even so, there was no timely application to adjourn the hearing or to bring the alleged conflict to the court's attention before the expert testified.
Nor did the ex-wife or her attorney file a motion under Rule 4:50-1 with the Family Part seeking to vacate the FJD on the basis of an asserted conflict of interest, an application that would have allowed the record to be appropriately developed on the issue. Instead, the ex-wife raises the conflict issue for the first time on this appeal.
The record is also bereft of any affidavit or certification by the ex-wife attesting to the unsworn and undocumented assertion in her brief that she met with the expert before the expert was retained by her ex-husband. The ex-wife also has not specified what personal information, not otherwise known by her spouse, that she shared with the expert privately and which the expert somehow used to her disadvantage at the default hearing. Without a proper citation to the trial court record, the brief's unsubstantiated factual assertion of such prior consultation is not suitable for our consideration. See R. 2:5-4(a) (defining the record on appeal to include only materials presented to the trial court); see also Cipala v. Lincoln Technical Inst., 179 N.J. 45, 54-55 (2004). Moreover, we customarily do not reach or resolve on appeal issues that a litigant failed to raise in the trial court. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
Even if we were required to address the ex-wife's conflict-of-interest allegation for the first time in this appeal, the record that has been supplied to us does not demonstrate such a conflict. The mere fact that the billing records of the exwife's trial attorney reflect that the attorney had two brief conversations with the expert--totaling no more than a half hour--does not prove that the expert was acting in a dual or improper capacity. It is not unusual or per se inappropriate for an expert witness retained by one litigant to have conversations with counsel representing an opposing party in the same matter. Counsel sometimes legitimately may need to speak with such an expert concerning scheduling issues, or to arrange access to materials or information that the expert may require to perform his or her work.*fn5
The ex-wife has supplied no affidavit or certification from her former attorney explaining the purpose or substance of that attorney's telephonic communications with the expert. We will not presume that those contacts were inappropriate, absent much more definitive proofs than the two billing entries. Indeed, it is conceivable that the ex-wife's contentions of a conflict here are founded upon a misunderstanding or misperception of the expert's role. The ex-wife simply has failed to develop an adequate record to establish an impermissible taint. Consequently, we reject the ex-wife's demand to strike the expert's testimony and to vacate the default proceeding.
We are likewise unpersuaded that the trial court erred in finding a sufficient circumstantial basis to order a refund of the $12,500 payment for the sadaq. The ex-wife provides no contrary legal support to the expert's assertion, which was adopted by the trial court, that under Islamic law and customs the payment of a sadaq is refundable if there is a proven impediment to the marriage such as a spouse's undisclosed mental illness. See also Alicea v. New Brunswick Theological Seminary, 128 N.J. 303, 313 (1992) (noting the relevance of religious customs and principles in certain civil disputes, particularly with respect to contractual promises that can be decided by applying neutral principles of law). Having failed to cite to contrary legal authority, the ex-wife instead challenges the sufficiency of the factual proofs of fault and impediment that were adduced before the trial judge.
At the default hearing, the ex-husband testified that, after she moved in with him, his new spouse was "sleeping all through the day" and that he discovered she was "taking a depression medication without prescription." There was also testimony from the ex-husband about his spouse's refusal to engage in marital relations or to seek employment, and her ultimate departure and relocation to South Carolina. The ex-wife denies, again without citation to any sworn proofs in the record, that she has ever taken medication without a prescription. She also complains that the ex-husband's testimony did not mention the identity of the medication she was taking, the dosage amounts, or the frequency. We do not regard the absence of those additional details as warranting relief to the ex-wife on this appeal. The trial court obviously perceived that the ex-husband's testimony was credible. Although we understand that the ex-wife now contests the trial court's factual findings, there is ample and substantial credible evidence in the record sufficient to support those findings. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Moreover, if the ex-wife wished to contest her spouse's factual assertions, she should have complied with the Court Rules and not allowed her case to lapse into, and remain in, default.
In sum, we sustain the Family Part's determinations in all respects, substantially for the reasons set forth in Judge Katherine R. Dupuis's letter opinion dated May 13, 2009.