SONGUL CETIN v. ISMAIL CETIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2680-04T2

SONGUL CETIN,

Plaintiff-Respondent,

v.

ISMAIL CETIN,

Defendant-Appellant.

___________________________________

 

Submitted December 5, 2005 - Decided

Before Judges Lintner and Gilroy.

On Appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FM-01-495-04.

Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys for appellant (Michael A. Gill, on the brief).

Henry G. Broome, Jr., attorney for respondent.

PER CURIAM

Defendant, Ismail Cetin, appeals from a Final Judgment of Divorce entered in the Family Part on December 21, 2004, awarding plaintiff, Songul Cetin, rehabilitative and reimbursement alimony, child support, damages for personal injuries, counsel fees, and expert's fees; and ordering defendant to pay interpreter fees. For reasons expressed, we affirm in part; modify in part; and reverse in part.

The parties are natives of Turkey and speak minimal English. Defendant moved to the United States in 1989, and has owned and operated a produce/convenience grocery in Absecon, New Jersey since 1993. Plaintiff completed two years of study at the University of Istanbul, where she studied accounting. She moved to the United States in 1996. The parties met in Florida and were married there on May 16, 1997. They have one child, John, born on May 3, 2000.

Throughout the marriage, the parties rented their residence, and maintained a lower middle-class lifestyle. Defendant operated his store between the hours of 8:00 a.m. and 8:00 p.m., seven days per week. Plaintiff worked at defendant's store without compensation for the first four years of the marriage, under defendant's threat that she would have to return to Turkey if she stopped working at the store. The parties' monthly housing expenses were $850 in rent, and $150 to $200 in utilities. Defendant controlled the parties' assets, and plaintiff had limited access to funds for personal use.

Defendant gambled heavily and regularly consumed large quantities of alcohol. When defendant drank, he became abusive, and struck plaintiff on numerous occasions throughout the marriage. A temporary restraining order (TRO) was entered on January 26, 1998, based on alleged physical and sexual abuse, but was dismissed at the hearing on February 19, 1998, for insufficient evidence. Thereafter, during an altercation, defendant banged plaintiff's head against a bathroom sink in his store, resulting in injuries to plaintiff's head and face. The police responded, and plaintiff was taken to the hospital. A TRO was entered on April 29, 1998, and a final restraining order (FRO) was entered on May 14, 1998. On August 27, 1998, the FRO was dismissed at plaintiff's request. On occasion, plaintiff stayed at the Northfield Women's Center due to fears of abuse, and she received psychiatric and psychological counseling in 1997 and 1998.

In June 2001, plaintiff obtained employment as a cashier at an Atlantic City casino, and desired to send the parties' son, John, to preschool so that he could learn English. Although defendant objected to John attending preschool, plaintiff sent John to All God's Children preschool in Absecon in early 2002, at a cost of $150 per week. Plaintiff began taking "English as a Second Language" (ESL) courses at Atlantic Cape Community College (ACCC), while she worked at the casino.

In summer 2003, plaintiff found approximately $100,000 cash in a closet in their residence, and an altercation ensued. Defendant told plaintiff that she was not going to receive any of the money, and demanded that she leave the residence. Plaintiff moved to Atlantic City, and took a job at a different casino as a room service attendant. She was unable to continue attending classes at ACCC, arresting her studies at the fifth of nine levels in ESL. John also stopped attending preschool due to lack of funds. His English speaking skills are minimal. Defendant continued to reside in the marital home, and operate the store. His monthly expenses remained the same, but he was later able to obtain a roommate to share housing costs.

Plaintiff filed for custody and child support on July 29, 2003, and the parties reached an agreement providing for joint legal custody of John, with plaintiff as the parent of primary residence; parenting time with defendant on alternate weekends and overnight every Wednesday; and payment of child support by defendant in the amount of $185 per week through probation. On November 24, 2003, plaintiff filed for divorce based on grounds of extreme cruelty. In addition, she sought alimony, increased child support, equitable distribution of assets, damages for assault and infliction of emotional distress, counsel fees and costs. During the pendency of the divorce action, the parties modified the prior support agreement to provide for parenting time with defendant on alternate weekends only, commencing May 28, 2004.

Defendant's counsel, who represented him on issues of custody and parenting time, filed a motion to withdraw, which was granted on September 7, 2004. A trial was held on September 14, 17, and 20, 2004, before Judge Middlesworth, Jr., J.S.C. Plaintiff was represented by counsel and defendant appeared pro se. A court approved interpreter was present to translate between Turkish and English.

Plaintiff expressed concern for John's safety because of defendant's heavy drinking habits, John being in defendant's care at the store, and continued exposure to defendant's abusive conduct. Further prompted by an incident that occurred on the eve of the last day of trial, plaintiff requested a change in the parenting plan. Defendant was to have returned John to plaintiff at 6:00 p.m. on September 19, 2004. When plaintiff arrived at defendant's store, defendant refused to return the child, and left the store with John. Plaintiff telephoned the Absecon Police Department and filed a report. Police officers searched for defendant at the store, at a McDonald's restaurant where they found defendant's truck, and at his residence. Later, Defendant and John arrived by taxi at plaintiff's residence in Atlantic City. Defendant was visibly intoxicated. John was returned to plaintiff shortly after 9:00 p.m.

At the time of trial, defendant's monthly expenses totaled $1,100, including $163 for parenting expenses; $58 for food and household supplies; $20 for clothing; $20 for dining expenses; and $15 for gifts. Defendant refused to provide the court with reliable figures for his income, and only supplied tax returns from his business. Defendant was also approximately $3,500 behind in child support payments.

Plaintiff's wages were $4.30 per hour, plus tips that averaged $100 to $150 per week. Her average gross income was $1,300 monthly, and her average net income was $1,000 monthly. Plaintiff's monthly expenses totaled $2,867, including $837 for shelter expenses; $426 for transportation expenses; and $1,604 for personal expenses, inclusive of $387 for child care, John's preschool costs, and plaintiff's estimated tuition and fees at ACCC. Plaintiff had three credit cards totaling $950 in debt, and one additional credit card with an unknown balance. In order to supplement her monthly earnings, plaintiff's siblings and friends sent her money, and at the time of trial, plaintiff owed $6,000 to family, and $2,500 to friends.

Plaintiff presented an accounting expert, Mark Morowitz, a Certified Public Accountant, who prepared a comprehensive report concerning defendant's income and evaluation of the business, based on defendant's 1994 to 2003 tax returns. He testified that although defendant stated that his net income for 2002 was $9,466, as reflected on defendant's business tax returns, defendant's net income for 2002 was approximately $62,800, and the store was valued at $84,000. These estimates were based on Morowitz's detailed calculations, various underreported and overstated expenses in the 2002 tax return, industry comparisons, and Morowitz's experience.

On December 21, 2004, Judge Middlesworth filed a comprehensive twenty-four page written memorandum of decision detailing his findings. A confirmatory Final Judgment of Divorce was entered the same day. Finding plaintiff's undisputed allegations as to defendant's conduct during the marriage to be credible, Judge Middlesworth concluded that defendant's conduct constituted "extreme cruelty, making it improper and unreasonable to expect the plaintiff to continue to cohabit with the defendant, and entitling the plaintiff to a divorce." Due to the events of September 19, 2004, he ordered defendant to undergo substance abuse evaluation and treatment as a condition of continued parenting time.

As to equitable distribution, Judge Middlesworth found that there was no evidence as to the present value of plaintiff's checking account; that defendant's business was pre-marital and had not increased in value during the marriage due to plaintiff's efforts; and that the net value of plaintiff's car was $1,250. The judge also found that defendant had at least $100,000 cash on hand, based on the uncontradicted testimony regarding the existence of the cash found in the closet and his gambling habits, along with defendant's unwillingness to provide present values for his savings and clarification as to his income and expense discrepancies. Considering the factors under N.J.S.A. 2A:34-23.1, Judge Middlesworth allocated defendant the entire sum of $100,000, subject to plaintiff's claim for one-half; his pre-marital business free from any claim by plaintiff; and his personal and business debts. Plaintiff was allocated her checking account, her automobile, and her debts. As an equalization payment, the judge ordered that defendant pay plaintiff the sum of $44,465, with interest (5% per annum), in payments of $1,000 per month, the first payment being due February 1, 2005.

Regarding alimony, Judge Middlesworth found that plaintiff's annual income was $33,600, and that defendant's gross income was $86,776 annually, based on plaintiff's expert's analysis, after adding back deductions for the expenses listed in the Child Support Guidelines for Self-Employed Individuals, and taxes. After considering the factors under N.J.S.A. 2A:34-23b, he concluded that plaintiff was not entitled to permanent alimony. However, the judge determined that defendant derived an economic benefit from plaintiff's uncompensated work at his business, which he spent gambling during the years of the marriage. The judge ordered defendant to pay plaintiff reimbursement alimony of $200 per week for two years. He also found that plaintiff would need at least an Associate's degree, or an additional two years of study, in order to compete in the workforce. Consequently, defendant was ordered to pay plaintiff rehabilitative alimony in the amount of $7,000, at $200 per week for thirty-five weeks, additional to the reimbursement alimony obligation. Alimony payments were to commence on January 7, 2005.

As to child support, Judge Middlesworth utilized the sole parenting worksheet, and ordered defendant to pay $302 per week in child support, along with $148 per week toward arrears, payments to begin January 7, 2005. He also awarded plaintiff $10,000 in compensatory and punitive damages on her tort claims of assault, finding that defendant did not contest the underlying facts. The judge analyzed the factors under R. 5:3-5(c), regarding the payment of counsel fees. Based on his finding that plaintiff's counsel fees were reasonable under the factors in R.P.C. 1.5(a), and that defendant engaged in bad faith in an attempt to conceal his actual income and prevent plaintiff from obtaining support, Judge Middlesworth ordered defendant to pay plaintiff's counsel fees and costs of $10,708.78, pursuant to R. 4:42-9. Citing his analysis for counsel fees and his finding of bad faith, the judge also ordered defendant to reimburse plaintiff's attorney for Morowitz's fee of $1,500, and to reimburse the court for the "expense of the Turkish Interpreter requested by the parties, $1,122.40."

On appeal, defendant argues that the judge erred: 1) in awarding rehabilitative and reimbursement alimony; 2) in ordering defendant to pay the interpreter fees; and 3) in failing to advise defendant that he should obtain legal counsel.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). It is against these standards that we address defendant's argument.

I.

In awarding alimony pursuant to a divorce decree, the trial court must "'consider and make specific findings' under N.J.S.A. 2A:34-23[b]." Crews v. Crews, 164 N.J. 11, 25 (2000) (quoting Carter v. Carter, 318 N.J. Super. 34, 42 (App. Div. 1999)). The thirteen factors in N.J.S.A. 2A:34-23b apply to all alimony awards. Subsection "c," which directs the court to consider limited duration, reimbursement, and rehabilitative alimony when the court finds permanent alimony inappropriate, mandates that the same factors as relevant to an award of permanent alimony be considered. N.J.S.A. 2A:34-23c. Subsections "d" and "e" identify scenarios where rehabilitative and reimbursement alimony are appropriate. "Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur." N.J.S.A. 2A:34-23d. "Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education . . . ." N.J.S.A. 2A:34-23e. Notwithstanding, "[n]othing in this section shall be construed to limit the court's authority to award permanent alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case." N.J.S.A. 2A:34-23f. We address defendant's arguments as to the court's alimony awards in sequence.

Our courts have awarded rehabilitative alimony when a party may be placed in a self-support economic position, after a period of educational advancement. It is "payable for a specific time period, ceasing when the dependent spouse is in a position of self-support," Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998), and it permits a spouse "'to complete the preparation necessary for economic self-sufficiency.'" Cox v. Cox, 335 N.J. Super. 465, 474-75 (App. Div. 2000) (quoting Hill v. Hill, 91 N.J. 506, 509 (1982)). "The focus of rehabilitative alimony is upon the ability of the depend[e]nt spouse to engage in gainful employment, combined with the length of the marriage, the age of the parties, and the spouse's ability to regain a place in the workplace." Id. at 475 (citations omitted). Typically, the award is appropriate when the marriage is "relatively short and the recipient spouse is capable of full employment based on experience, additional training or further education." Heinl v. Heinl, 287 N.J. Super. 337, 348 (1996); Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992).

This court has found insufficient evidence for a rehabilitative alimony award where there was only "casual reference" to the intention to resume studies. Finelli, supra, 263 N.J. Super. at 407. While rehabilitative alimony is warranted where the payee demonstrates the necessary steps, time frame, and scope to rehabilitate the dependent spouse, N.J.S.A. 2A:34-23d, contrary to defendant's assertion, a rigid "plan" is not always necessary; the plan need only be reasonable. Wass v. Wass, 311 N.J. Super. 624, 635-36 (Ch. Div. 1998) (granting four years of rehabilitative alimony where there was testimony as to anticipated time (three years) and cost to complete a certification program, but no testimony as to time or cost to complete GED and basic skills training). Plaintiff testified that she needed to complete at least four additional levels of ESL studies, and that it would take about nine months or two semesters to complete the ESL program. She testified that she had been attending ACCC, had studied accounting in Turkey, and that accounting was her desired field of employment. The judge determined that in today's market, plaintiff would need at least an Associate's degree in accounting to be able to realistically compete for employment in the accounting field. We conclude that the determination was reasonable.

While ESL studies may generally prepare plaintiff for engaging in day-to-day conversation, her studies in accounting may require an advanced level of language ability. Accounting is a technical field, involving many complex theories and terms, which may not be taught in a regular ESL program. It was reasonable for the judge to determine that ESL studies alone would be insufficient. Further, ACCC's cost of attendance is public knowledge, and any individual may inquire as to the cost per credit hour, and the number of credits and length of time for completion of an Associate's degree in accounting. That plaintiff did not explicitly testify to these facts should not thwart her recovery, especially considering her limited ability to comprehend English, and thus, limited access to information. Plaintiff provided sufficient testimony for the judge to determine that an Associate degree in accounting at ACCC costs approximately $7,000.

The intention of rehabilitative alimony is to make the dependent spouse self-supporting, Crews, supra, 164 N.J. at 34, and an award would be useless if it did not set out to achieve that goal. See Cox, supra, 335 N.J. Super. at 475 (the purpose of rehabilitative alimony is to "enhance and improve the earning capacity of the economically depend[e]nt spouse"). As such, that the judge determined that at minimum plaintiff would require an Associate's degree in order to be self-supporting, and that the cost of the degree was $7,000, was consistent with the substantial credible evidence adduced at trial.

Reimbursement alimony is meant to "recognize past forbearances," Id. at 480, and a trial court's authority to award it is permissive. The statutory language in N.J.S.A. 2A:34-23e, indicates that where a specific forbearance exists, the court "may" award reimbursement alimony, whereas other kinds of alimony "shall" be awarded where appropriate. Compare N.J.S.A. 2A:34-23e, with N.J.S.A. 2A:34-23d. Even where the facts of a case satisfy subsection "e," the court is not obligated to order reimbursement alimony. In addition, although the statute indicates that one party's educational support of the other during the marriage may warrant reimbursement alimony, the court's authority to so order is not limited to only situations which satisfy subsection "e." See N.J.S.A. 2A:34-23f (indicating the court has broad discretion to award any kind of alimony that is warranted and just, in light of the circumstances and facts in the case).

Generally, courts have ordered reimbursement alimony, consistent with N.J.S.A. 2A:34-23e, in situations where one party supported the other throughout his or her pursuit of an advanced educational goal. See Cox, supra, 335 N.J. Super. at 475 (stating that reimbursement alimony is "intended to compensate a spouse who has made financial sacrifices resulting in a reduced standard of living by enabling the other spouse to forego gainful employment while securing an advanced degree or professional license"). Here, Judge Middlesworth found plaintiff's "forbearance" to be the years she spent working in defendant's store without compensation, and awarded reimbursement alimony at $200 per week for two years. Although there was no pursuit of advanced education by defendant, the payment of alimony in addition to rehabilitative alimony for a short transitional period, was not unwarranted by the facts of the case. Judge Middlesworth's comprehensive memorandum of decision provides adequate reasons for an award of limited duration alimony, although he did not consider such an award.

Since the marriage of six and one-half years was one of intermediate duration, and the judge found permanent alimony unwarranted, he should have considered limited duration alimony, as suggested by N.J.S.A. 2A:34-23c. "[I]n recognition of a dependent spouse's contributions to a relatively short-term marriage," limited duration alimony is to be awarded. Cox, supra, 335 N.J. Super. at 483. Such alimony is intended for situations where "an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate." Id. at 476. The judge considers the same factors for limited duration alimony as for a permanent alimony award. Id. at 483. In his memorandum of decision, Judge Middlesworth recognized the shortfall between plaintiff's expenses and her income. Based on the intended scope of limited duration alimony when compared with that of reimbursement alimony, it appears that plaintiff's award of for $200 per week for two years should have been "labeled" as limited duration alimony rather than reimbursement alimony.

This is not a case where the judge formed "naked conclusions" but instead one where he "provided a rationale for his decision in a comprehensive twenty-[four] page opinion." Hughes, supra, 311 N.J. Super. at 25. That the judge miscategorized this award as reimbursement alimony as opposed to limited duration alimony is an insufficient basis for reversal of that portion of the order. The trial judge is the best arbiter of the facts of a case. "[S]ubstantial weight must be given to the judge's observations of the parties' demeanor, comprehension and speech and to the fact that the trial judge had the distinct advantage of observing demeanor of the witnesses and a better opportunity to judge their credibility . . . ." Heinl, supra, 287 N.J. Super. at 345. A trial court's alimony findings may only be vacated if this court concludes that the trial court "clearly abused its discretion, failed to consider all of the controlling legal principles, or . . . that the determination could not reasonably have been reached on sufficient[,] credible evidence present in the record." Id. at 345.

Judge Middlesworth engaged in a thorough analysis of the factors in N.J.S.A. 2A:34-23b. We conclude that defendant's arguments that the judge did not consider the appropriate factors or apply the proper statute are without merit. As to defendant's income, because defendant failed to supply the court with proper documentation as to his income, the court relied on plaintiff's expert's analysis of defendant's tax returns and valuation of his business, rejecting, in part, the expert's theory of valuation. "Although defendant challenged the expert's [analysis and] valuation, the court was free to accept it, as it did [and] . . . defendant provided no expert testimony to refute the . . . expert's conclusions." Hughes, supra, 311 N.J. Super. at 25. We conclude that the judge's findings as to defendant's income and the necessity for the awards of alimony were sufficiently based on substantial, credible evidence.

II.

"The judiciary should generally assign interpreters to interpret all phases of court-connected proceedings for any person with limited proficiency in English who is a named party in the proceeding . . . ." "[A]ll costs for interpreting are to be borne by the Judiciary except in very limited instances . . . ." These exceptions include shifting the burden of fees to the public defender where an indigent non-English speaking defendant requires an interpreter next to him during trial to protect his Sixth Amendment right to confront witnesses, State v. Karaarslan, 262 N.J. Super. 123, 127 (Law Div. 1993); State v. Linares, 192 N.J. Super. 391, 396 (Law Div. 1983); where the court incurs expense that "could have been avoided but for the failure of a party or an attorney to give reasonable attention to the matter;" and when the court incurs expense because "an attorney or pro se litigant requests [an interpreter] but fails to use" one. None of these exceptions are applicable here. Our review of the record indicates that the interpreter was present at the court's request, was not independently retained by either party, and was actually used by both parties throughout the proceeding. We conclude that the burden of paying the interpreter's fee remained with the Judiciary and should not have been shifted to the defendant.

III.

Defendant argues that the judge failed to advise him that he should have retained legal counsel. Defendant relies on this court's discussion in Luedtke v. (Shobert) Luedtke, 342 N.J. Super. 202 (App. Div. 2001). Our review of the record in light of applicable law convinces us that defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Our holding in Luedtke was based on different facts than those in the present case. Specifically, the custodial parent was seeking to take the parties' child out-of-state; counsel sought to withdraw five days before trial; defendant did not know that she would not be represented at trial; and the child's best interests were implicated. Luedtke, supra, 342 N.J. Super. at 211-14. There, a different panel of this court noted that there is nothing preventing a party from "knowingly and intelligently decid[ing] to appear pro se," but that where a child's best interests are at stake the court should only proceed without both parties being represented if it is satisfied that the child's interests are adequately protected. Id. at 214. Here, defendant's attorney was permitted to withdraw as counsel based on his certification as to ethical problems with continued representation. Defendant does not allege that he was unaware that he would be unrepresented at trial, or that he failed to receive his former attorney's notice of motion to withdraw. Contrary to defendant's assertion, our holding in Luedtke did not turn on prejudice to the custodial parent, in so much as prejudice to the child. We conclude that there was no reason to believe that by defendant's independent decision to represent himself, John's best interests would be at risk.

We affirm the awards of rehabilitative and reimbursement alimony substantially for the reasons stated in Judge Middlesworth's thorough and thoughtful opinion; direct that the order be amended to label plaintiff's award of reimbursement alimony as limited duration alimony; and reverse that portion of the order pertaining to payment of interpreter fees. In all other respects, the order under review is affirmed.

 
Accordingly, we affirm in part; modify in part; and reverse in part.

It is noted that neither tax returns nor case information statements were provided to this court on appeal.

Standards for Delivering Interpreting Services in New Jersey (hereinafter Interpreting Services Standards), Standard 1.2, promulgated by Administrative Directive #3-04, March 22, 2004.

Administrative Directive #3-04, March 22, 2004.

Interpreting Services Standards, supra note 2 at Standard 1.4.

(continued)

(continued)

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A-2680-04T2

 

January 5, 2006