RAMENI G. RAHIM v. NAZAM RAHIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2809-04T52809-04T5

RAMENI G. RAHIM,

Plaintiff-Respondent,

v.

NAZAM RAHIM,

Defendant-Appellant.

____________________________

 

Argued December 20, 2005 - Decided April 20, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

FM-07-1651-01.

Paul Lomberg argued the cause for appellant

(Lomberg & DelVescovo, attorneys; Mr. Lomberg,

of counsel and on the brief).

Harry J. Herz argued the cause for respondent

(Johanna D. Roccanova and Mr. Herz, on the brief).

PER CURIAM

Defendant Nazam Rahim appeals from an order of December 6, 2004, increasing his child support obligation to $324 per week retroactive to November 4, 2004; fixing child support arrears in the amount of $3,717.20; imposing an obligation for unreimbursed medical and dental expenses; and counsel fees of $1,000. He also appeals the order of the Family Court of January 21, 2005, denying reconsideration of the December 6, 2004, order; denying his request for a plenary hearing; and directing payment of $2,500 for plaintiff's counsel fees. We affirm.

The parties were married on June 1, 1991. Three children were born of the marriage: Rafina Rahim, born May 9, 1989; Qasim M. Rahim, born July 22, 1990; and Nabila Rahim, born September 23, 1996. On February 5, 2001, plaintiff filed a pro se complaint for divorce in which she requested the following relief: "That the defendant shall pay Five Hundred dollars and no cents per month for child support." Defendant, also pro se, submitted an admission of service and waiver in lieu of answer on February 6, 2001, in which he stated his consent to the relief requested in the complaint for divorce. At the final hearing on February 21, 2001, both parties were present and the matter proceeded on an uncontested basis. The final judgment granted custody to the plaintiff and directed defendant to pay child support of $500 per month. The judgment also included a provision stating defendant's consent to plaintiff's relocating with the children to Florida as well as plaintiff's waiver of alimony.

In November 2004, plaintiff filed a motion to increase defendant's child support to the amount specified in the Child Support Guidelines; fixing arrears; and award counsel fees. Plaintiff certified she had not received child support since May 2004, and that the $500 per month for child support was "woefully inadequate." She submitted a Sole Parenting Worksheet stating defendant should pay child support of $337 per week.

In his opposing certification defendant claimed he was current on child support payments. He also contested any increase in child support, stating that plaintiff agreed to the $500 per month figure. While he filed a Case Information Statement, defendant did not submit a Guidelines Worksheet.

At the motion hearing on December 3, 2004, both parties were represented by counsel. Plaintiff's attorney reiterated that under the Guidelines the proper amount of child support for the three children was $337 per week, and defendant's attorney asserted that the Guidelines indicated $311 per week. After a recess, counsel agreed on $324 per week, and the motion judge so ruled.

On December 23, 2004, defendant, represented by new counsel, moved to vacate the December 6, 2004, order and to maintain $500 per month in child support; or, in the alternative, for a plenary hearing. In his accompanying certification he stated that the $500 per month child support figure was in consideration of his consent to permit plaintiff to move with the three children to Florida where she intended to marry his brother as well as other economic considerations. He further pointed to the fact that at the time of the divorce the trial judge told him he was obliged to pay child support of $500 until the children reached age eighteen when he then could move for a reduction, and that no indication was given of the possibility of any increase. Plaintiff's responding certification denied any agreement on her part that moving to Florida with the children was consideration for a reduced child support amount. She said it was only when it became clear that she was unable to maintain the children on the original support order that she determined that defendant had "gotten away with murder" by paying less than that prescribed by the Child Support Guidelines.

Defendant's motion for reconsideration and plaintiff's cross-motion were heard by the motion judge on January 21, 2005. The judge underscored the fact that previous counsel had reached an agreement with respect to the proper child support figure. New counsel for defendant asserted that, while he had not directly inquired of his client as to the authority given to the previous attorney, there was no reason for not maintaining the $500 per month as defendant's permanent child support award. The motion judge rejected defendant's argument and denied the motion for reconsideration, awarding counsel fees to plaintiff on both applications.

On appeal defendant now raises the following arguments:

POINT I - THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S ATTORNEY TO AGREE TO AN INCREASE IN DEFENDANT'S CHILD SUPPORT OBLIGATION WITHOUT INQUIRING AS TO HIS AUTHORITY TO SETTLE ON DEFENDANT'S BEHALF.

A. DEFENDANT'S ATTORNEY HAD NOT AUTHORITY TO SETTLE ON DEFENDANT'S BEHALF, WITHOUT DEFENDANT'S EXPRESS AND EXPLICIT AUTHORITY.

B. A PERSON FAMILIAR WITH MATRIMONIAL LAW COULD NOT REASONABLY PRESUME THAT THE DEFENDANT'S ATTORNEY HAD THE AUTHORITY TO AGREE TO AN INCREASE IN HIS CLIENT'S CHILD SUPPORT OBLIGATION.

POINT II - THE TRIAL COURT ERRED WHEN IT FAILED TO SCHEDULE A PLENARY HEARING AS TO THE AMOUNT OF CHILD SUPPORT PROVIDED FOR IN THE JUDGMENT OF DIVORCE.

POINT III - THE TRIAL COURT'S COUNSEL FEE AWARD TO PLAINTIFF WAS AN ABUSE OF DISCRETION.

After consideration of the record and briefs and arguments of counsel, we have determined that the arguments made by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

An award of child support shall not be overturned absent a determination that the amount was arbitrary, unreasonable or contrary to the evidence submitted. Loro v. Colliano, 354 N.J. Super. 212, 220 (App. Div.), certif. denied, 174 N.J. 544 (2002). Here it is clear that defendant received the benefit of a child support obligation for approximately three years that was well below an appropriate amount for support of three children. Moreover, defendant's argument that he and his former wife agreed to a low child support figure is beside the point since the right of support belongs to the child, not the parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). The Child Support Guidelines must be used as a rebuttable presumption to establish and modify child support orders. Ordukaya v. Brown, 357 N.J. Super. 231, 239 (App. Div. 2003) (quoting Pressler, Current N.J. Court Rules, Appendix IX-A(2) 2003)); Schwarz v. Schwarz, 328 N.J. Super. 275, 283 (App. Div. 2000). Defendant has not presented any basis to rebut either the presumption or the calculations used to reach the amount ordered by the court. Finally, with respect to the counsel fees awarded to plaintiff, we find no mistaken exercise of discretion by the trial judge. See Mani v. Mani, 183 N.J. 70, 94-95 (2005); R. 5:3-5(c).

 
Affirmed.

(continued)

(continued)

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A-2809-04T5

April 20, 2006