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Memija v. Papajani

Superior Court of New Jersey, Appellate Division

October 30, 2013

ISA MEMIJA, Plaintiff-Respondent,
v.
KLARIDA PAPAJANI, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 20, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1236-07.

Klarida Papajani, appellant pro se.

Respondent has not filed a brief.

Before Judges Graves and Simonelli.

PER CURIAM

In this post-judgment matrimonial matter, defendant Klarida Papajani appeals from a June 10, 2011 order, which requires her to contribute $4500 to her former husband's counsel fees, and a subsequent order denying her motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff Isa Memija and defendant were married on January 11, 2003, and their judgment of divorce (JOD) is dated December 20, 2007. Two children were born of the marriage, now ages nine and seven. The JOD granted sole custody of the children to defendant. Based on plaintiff's imputed income of $33, 000 per year and defendant's annual income of $40, 508, plaintiff was ordered to pay child support in the amount of $146 per week. On July 26, 2008, the court increased plaintiff's support obligation to $262 per week, based on defendant's representation that she was paying work-related child care in the amount of $300 per week.

In December 2008, defendant sent the children to Albania to reside with her mother. On April 3, 2009, the court denied defendant's request for babysitting expenses because the children were not residing in the United States, and ordered defendant to provide receipts for any expenses she paid for the benefit of the children.[1] The order also stayed plaintiff's child support obligation, and reserved the date for any retroactive modification to March 13, 2009.

Following an accident, plaintiff was found to be disabled by the Social Security Administration, and he began receiving social security disability payments in the amount of $977 per month in November 2009. Defendant also received $472 per month from social security for the benefit of the children. At a status review hearing on June 23, 2010, defendant acknowledged she had received approximately $3600 from social security disability.

On September 10, 2010, plaintiff filed a motion requesting the children be returned to the United States, his child support payments be recalculated based on the social security disability benefits, and any support arrears be vacated. The court entered an order for a plenary hearing on November 15, 2010, and the parties subsequently entered into a consent order, agreeing that the children would return to the United States in August 2011.[2]

The plenary hearing took place on April 6, 21, 26, and May 9, and 16, 2011. During the hearing, plaintiff testified his total monthly income was $977 from social security disability benefits. He itemized his monthly expenses as follows: $400 for rent, $43 for a cellular telephone, approximately $300 for food, $40 in non-prescription drugs, $100 for medical expenses, and $100 on alcohol and tobacco, totaling $983. When questioned about his monthly expenditures, plaintiff testified:

Q. Do you have any monies left over after paying these expenses?
A. No. I have to borrow money until I get . . . another check to keep—catching up with everything I have.
Q. . . . And as far as paying for our counsel fees, you don't have that listed. How have you been able to pay for counsel fees, Mr. Memija?
A. My cousin pays for the counsel fees.

In addition, defendant testified as follows:

Q. Ms. Papajani, when did you send the children to live with your mother?
A. Sometime around—for Christmas 2008.
Q. They have been gone since at least 2008, correct?
A. Yes.
Q. And you filed for babysitting expenses in 2009, even though the children were residing with your mother since 2008, correct?
A. Yes.
Q. So, you sought to have [plaintiff] reimburse you [for] babysitting expenses for children that weren't living with you, correct?
A. Yes, because someone else . . . take[s] care of them.
Q. . . . And isn't it also true that you were seeking work-related child care contribution, even though work-related child care costs were already included in the child support?
A. Yes.
Q. Okay. The children are not in your physical custody at the present time, correct?
A. No.
Q. Okay. And this court had ordered you to return the children to the United States on several occasions, correct?
A. Yes.
Q. . . . [I]n 2008, you filed an application . . . for an increase in child support, correct?
A. Yes.
Q. . . . [I]sn't it true that you were making $40, 000—or you advised the court you were making $40, 508 at that time?
A. I showed proof to the court, W-2, yes.
Q. Okay. But isn't it true that you earned $76, 000 gross in 2008?
A. Yes.

In addition, defendant confirmed that she received $472 per month in child support from social security disability, amounting to $5, 664 per year. Defendant claimed she sent the social security payments and an additional sum of "around $24, 000" per year directly to her mother in Albania.

On June 10, 2011, the court reduced plaintiff's child support obligation and ordered defendant to contribute $4500 to plaintiff's attorney's fees. In a comprehensive written decision, the court evaluated the factors set forth in Rule 4:42-9(a)(1) and the nine factors enumerated in Rule 5:3-5(c):

The court has reviewed counsel's certification as to legal services rendered.[3] The court finds that counsel's hourly rate and the time expended to be reasonable given the experience of counsel and the rate charged by similarly qualified counsel in Bergen County. The court finds, therefore, the lodestar amount of $20, 002.86, including costs, to be fair and reasonable and consistent with Rendine v. Pantzer, 141 N.J. 292 (1995).
1. Applicant's Need
The defendant has income of not less than $64, 000 per year.
The plaintiff has income of $983 per month or $11, 796 per year from [social security disability]. The court also imputed income to the plaintiff of $7, 873.20 per year. The plaintiff cannot afford to pay his attorney fees except by borrowing.
The plaintiff has a need for attorney fees.
2. Defendant's Ability to Contribute
The defendant has the ability to contribute to the plaintiff's attorney fees.
3. Good Faith
The defendant was not candid as to the fact the children are living outside the U.S. While the plaintiff's primary motivation was to secure a modification of child support, the defendant did not have authority to remove the children to Albania. The defendant was not candid with the court in receiving child support and work related child care after the children were transferred by the defendant to her family in Albania.
The plaintiff was entitled to be aware of the removal and to review child support.
Conclusion:
The defendant is responsible for the fact the plaintiff had to make an application for the return of the children from Albania. The defendant was not candid with Judge Friscia as to the location of the children.
The plaintiff incurred extraordinary fees due to the lack of candor of the defendant and was deprived of the opportunity to review child support based on the location of the children outside the U.S.
The court having considered the factors . . . and the ability of the defendant to contribute to plaintiff's attorney fees together with the receipt by the defendant of [social security disability] benefits without notification to the plaintiff or the court, the court finds that it is appropriate for the defendant to contribute $4500 to the plaintiff's attorney fees.

On August 26, 2011, the court denied defendant's motion to reconsider the legal fees awarded to plaintiff.

Defendant's sole argument on appeal is that she "should not have been charged with [plaintiff's] attorney's fees, " because it "was the Probation Office [that] took the case to court." However, the record does not support this contention. Defendant does not contest the additional provisions of the order.

Findings by a trial judge are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483 (1974). We 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.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

An award of counsel fees in matrimonial matters is discretionary. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). "In determining whether a counsel fee should be imposed, the court must look at the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Boardman v. Boardman, 314 N.J.Super. 340, 349 (App. Div. 1998). That is what happened here, and we find no abuse of discretion or reversible error.

Affirmed.


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