SABA HASAN v. CHAUDHRY AHMED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3864-08T2

SABA HASAN,

Plaintiff-Respondent,

v.

CHAUDHRY AHMED,

Defendant-Appellant.

July 22, 2011

Argued May 23, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1535-06.

Timothy J. Dey argued the cause for appellant.

Vincent S. Verdiramo argued the cause for respondent (Verdiramo & Verdiramo P.A., attorneys; Mr. Verdiramo, on the brief).

PER CURIAM

Defendant Chaudhry Ahmed appeals the Family Part's February 27, 2009 denial of reconsideration, after it declined his initial post-judgment application to vacate the May 29, 2007 final judgment of divorce, entered by default, to plaintiff Saba Hasan. Defendant also appeals the award of counsel fees. We affirm.

Although defendant now advances Rules 4:50-1(d) and (f) as the bases for his requested relief, the arguments presented to the trial court in support of reconsideration were framed in more general terms. Defendant simply contended the divorce decree should be vacated in favor of a judgment of divorce he obtained in Pakistan because of a lack of personal service upon, and/or jurisdiction over him, in New Jersey.

At the October 3, 2008 proceeding in which he sought to vacate the judgment, without citation to authority, defendant's prior counsel argued that because the parties were divorced in Pakistan, the New Jersey divorce should be vacated in its entirety, child support decreased, joint legal custody granted, and parenting time allocated to defendant. Defendant also alleged that plaintiff accomplished service by publication despite actual knowledge of his whereabouts and that the judgment should be vacated for that reason alone.

A detailed discussion of the circumstances in dispute is warranted. On March 31, 2006, after the complaint for divorce was filed and while she was attempting to serve defendant, plaintiff appeared before the Family Part seeking pendente lite custody of the parties' son, who was then four and one-half years old, as well as interim child support. During argument, plaintiff's counsel reiterated the facts set forth in the documents submitted in support of the motion. Plaintiff alleged that, on January 19, 2005, she and defendant, United States citizens who had resided in Jersey City at least since their marriage in 1998, traveled to Pakistan for defendant's brother's wedding. Plaintiff and defendant had been married in Pakistan, and plaintiff believed their visit would extend for approximately one month.

Upon arrival, however, plaintiff was kept in isolation in the lower portion of defendant's parents' home. She eventually learned that defendant had divorced her, and that it was he, not his brother, who planned to marry.

Once plaintiff's sister became aware of the situation, she came to plaintiff's aid and convinced defendant's family to release her and the parties' child. Although defendant's family agreed to permit plaintiff and the child to leave their home, they did not hand over plaintiff's and the child's passports. Defendant had obtained a court order placing the child on a "no exit" list, and it took plaintiff approximately eight months to leave Pakistan because she was required to appeal the order before she and the child were permitted to leave the country.

During the pendente lite hearing, plaintiff's counsel also referred to documents in plaintiff's possession indicating that defendant owned, at a minimum, a Taxi and Limousine Commission (TLC) license in New York City. Plaintiff's counsel said she had the TLC license number, as well as the license plate number for defendant's taxi. Counsel noted that a process server had unsuccessfully attempted service on defendant at his workplace on more than one occasion and that those present denied even knowing him. Counsel stated that as a result she believed defendant was deliberately avoiding service.

Accordingly, after the hearing, the court granted plaintiff temporary sole custody of the child, but denied child support. When a support order was finally entered, the judge said, she would likely make the order retroactive to March 14, 2006, the filing date of the initial motion.

Service on defendant was subsequently accomplished by publication in accord with Rule 4:4-5(a)(3). Although we have not been supplied with a copy of counsel's affidavit or certification submitted prior to the issuance of an order permitting such service, publication including notice to defendant of a demand for custody, child support, and equitable distribution was made on April 25, 2007.1

Consequently, on May 29, 2007, following the admission of the publication notice, the divorce was heard as an uncontested matter. No copy of the notice is included in the record.

Plaintiff briefly testified through an interpreter that defendant earned approximately $70,000 annually in the years the parties lived together and had sent approximately $400,000 home to Pakistan. Plaintiff did not request allocation of any portion of defendant's ownership of a taxi medallion or license and the record does not clearly indicate which of the two he owns.2 In light of plaintiff's testimony with regard to her confinement in defendant's parents' home and defendant's procurement of a no-exit order on allegedly perjured testimony, defendant was not granted parenting time.

The court ordered the following relief after considering plaintiff's uncontroverted testimony: dissolution of the marriage, an award of $200,000 in equitable distribution, sole custody to plaintiff of the parties' child, and weekly child support of $225. Alimony was not granted, as the judge noted no such demand had been included in the published notice.

When defendant's federal income tax refund was intercepted to be applied towards child support arrears, defendant moved to vacate the final judgment of divorce. Oral argument in the trial court revealed this may not have been defendant's first motion related to child support, as his attorney referred to prior counsel filing an earlier unsuccessful application; however, no mention is made in the briefs, nor is there anything in the record, regarding any such proceeding. Meanwhile, plaintiff's new attorney explained her prior counsel appearing during the divorce hearing was no longer working at the law office of record, and plaintiff's file, containing all the documents related to the divorce, was apparently lost.

In a decision rendered from the bench on defendant's application to vacate the final judgment of divorce, the judge found defendant's submissions as to his earnings to be incredible. This finding took into consideration the amounts set forth on defendant's income tax returns. The court concluded that defendant's alleged earnings were disproportionate to the estimated value of his taxi medallion, worth at least $400,000. The judge denied defendant's request for modification of child support, without prejudice to defendant's right to reapply with more credible proofs. We have only portions of defendant's returns in the appendix, but assuming they are the same as the documents reviewed by the judge, we agree with her conclusion that they were of doubtful reliability in light of defendant's alleged employment as a taxi driver in New York City.3

Moreover, the court did not agree that because plaintiff knew defendant's family's address in Pakistan, that she should have served him there, given plaintiff's belief that defendant's family had confined her in their home and aided him in placing her on a no-exit list. The judge attempted to arrange supervised visitation in the courthouse, but defendant rejected the offer because a member of plaintiff's family, who he claimed had threatened him, would accompany the child to the building. The court found defendant's explanation for his failure to seek contact with his son that he was fearful of plaintiff's family was also incredible.

On defendant's reconsideration application, heard February 27, 2009, to confirm he was only working part-time, counsel presented a "transcript report" from defendant's alleged employer as well as a doctor's statement that he had become disabled. The court did not find those documents to be credible. Additionally, the judge repeated her conclusion that the parties were residents of New Jersey at the time plaintiff was granted her divorce.

Defendant now raises the following points on appeal:

I. STANDARD FOR MOTIONS FOR RECONSIDERATION UNDER []R. 4:49-2

II. MOTIONS TO VACATE ARE TO BE LIBERALLY GRANTED

III. GROUNDS TO VACATE A JUDGMENT UNDER []R. 4:50

IV. JURISDICTIONAL AND SERVICE OF PROCESS DEFECTS ADDITIONALLY COMPEL VACATION

(a) NEW JERSEY LACKED IN PERSONAM JURISDICTION

(b) NEW JERSEY LACKED MINIMUM CONTACTS

(c) NEW JERSEY FAILS THE "FAIR PLAY/ SUBSTANTIAL JUSTICE["] TEST

(d) THE DEFENDANT DID NOT MAKE A SUFFICIENT DILIGENT INQUIRY TO SERVE THE DEFENDANT BY PUBLICATION ALONE

(e) THE PLAINTIFF'S INEFFECTIVE SERVICE OF PUBLICATION IS ALSO GROUNDS TO VOID THE FINAL JUDGMENT UNDER RULE 4:50-1

(f) THE DEFENDANT'S RELIANCE ON THE VALIDITY OF THE PAKISTANI DIVORCE AND THE PRINCIPLES OF COMITY WAS REASONABLE

V. THE PLAINTIFF'S MOTION FOR RECONSIDERATION SHOULD HAVE BEEN GRANTED SOLELY ON THE TRIAL JUDGE'S ABSOLUTE IGNORANCE OF VITAL FACTS

(a) THE PLAINTIFF [] CLEARLY LIED TO THE TRIAL JUDGE AND IN SUBSEQUENT CERTIFICATIONS UPON WHICH THE COURT INEXPLICABLY RELIED

(i) THE COURT'S ORDER FOR EQUITABLE DISTRIBUTION WAS BASELESS

(ii) THE COURT'S ORDER FOR ATTORNEY'S FEES WAS UNWARRANTED

(iii) THE CHILD SUPPORT AMOUNT HAS NO BASIS IN FACT

While we do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), paying particular deference to the Family Part's expertise, Cesare v. Cesare, 154 N.J. 394, 412-13 (1998), the legal consequences which flow from such factual determinations "are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Furthermore, the equitable distribution of marital assets is reviewed under an abuse of discretion standard. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).

We see nothing in this record that would cause us to doubt the trial judge's assessment of defendant's credibility. His ownership of a valuable asset at the time of divorce, that is, his authorization to drive a taxi in New York City, gives credence to plaintiff's assertion that his earnings were high, and that during the years of their marriage he sent substantial sums of money out of the country. Nor do we doubt the judge's conclusion that defendant avoided service of process in New Jersey, which left plaintiff with no realistic alternative but service by publication.

As required by Rule 4:49-2, motions for reconsideration should be granted only where a disappointed litigant can provide "a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." In contrast with the requirements of the rule, defendant's motion merely restated his initial arguments. No new law or fact was presented which warranted reconsideration. See D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

We consider equally lacking in merit defendant's contention on appeal, not raised before the trial court, that the Family Part judge made a decision in "absolute ignorance of vital facts" and based upon certifications of plaintiff in which she "clearly lied." The only documents we have available in the record are from defendant and, like his tax returns, they do not create confidence in the credibility of his assertions. Our attention has not been drawn to anything on the record which casts doubt on the judge's determination that plaintiff was the more credible party.

We briefly address defendant's claim his application to vacate the default judgment should have been granted because of problems with notice by publication and lack of in personam jurisdiction. Generally, motions to vacate default judgments are granted liberally. Marter v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff d, 43 N.J. 508 (1964). "[E]very reasonable ground for indulgence is tolerated to the end that a just result is reached." Ibid. But, as set forth in Rule 4:50-1, no such relief is granted unless the defendant appears to have a "meritorious defense." Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 4:50-1 (2011). The only instance in which a meritorious defense is not necessary is where a default was procured by virtue of defective service of process. Ibid.

Certainly, service by publication is generally "the mode of service least calculated and least likely to result in notice to a party[.]" Camden Cnty. Bd. of Soc. Servs. v. Yocavitch, 251 N.J. Super. 24, 29 (Ch. Div. 1991). Nonetheless, it is permissible where an affidavit of diligent inquiry is supplied to the court. In this instance, the affidavit was not included in either parties' appendix. Nevertheless, the trial court mentioned it along with the published notice when she declined to award plaintiff alimony because no such request was included in the notice.

A party is not required to exhaust every conceivable means of service before resorting to publication. A plaintiff is only required to follow up on information which might reasonably lead to defendant's whereabouts. See Modan v. Modan, 327 N.J. Super. 44, 48-49 (App. Div. 2000). Defendant's only concrete allegation of a flaw in plaintiff's search is the claim that she should have attempted service by contacting his parents in Pakistan. He is silent about her efforts to serve him at his place of employment. Although defendant disputes plaintiff was a virtual prisoner in his parents' home, he does not dispute that plaintiff was ultimately removed from the "no-exit" list after she appealed the classification. It is not reasonable to expect plaintiff to serve defendant by transmitting the complaint to his parents, in a foreign country. It is clear from the record that defendant does not reside in Pakistan; he resides in New York, and he has not established that service in Pakistan would have been appropriate in any event.

At the pendente lite hearing, plaintiff's attorney recounted plaintiff's efforts to obtain defendant's address from his employer, or from the TLC, which were fruitless because of New York's privacy laws. Given this unrefuted constraint, the court's order allowing plaintiff to proceed by publication was well-grounded on plaintiff's diligent, reasonable efforts.

Defendant also contends that, because the court did not have personal jurisdiction over him, it improperly granted plaintiff a divorce. This assertion also lacks merit.

Our courts have jurisdiction over divorces "when either party is a bona fide resident of this State." N.J.S.A. 2A:34-8. Thus, the court had jurisdiction over the parties' matrimonial matter, taking into account only plaintiff's continuous residence, since at least 1998, in Jersey City. As far as plaintiff is aware, it was not until the parties went to Pakistan in December 2005 that defendant left New Jersey. See R. 4:4-4(b)(1). Since the parties had lived in Jersey City, plaintiff and the child returned to Jersey City, and defendant's departure from the state was for a brief period of time before the filing of the divorce complaint, the exercise of subject matter jurisdiction over the divorce was warranted.

None of the cases cited by defendant in support of the proposition that the court lacked in personam jurisdiction over him are in any way apposite. Those cases, such as Sharp v. Sharp, 336 N.J. Super. 492 (App. Div. 2001), Katz v. Katz, 310 N.J. Super. 25 (App. Div. 1998), and Slodowski v. Slodowski, 156 N.J. Super. 376 (Ch. Div. 1978), involved litigants who were absent from the state for years prior to the institution of proceedings. Plaintiff filed for divorce only four months after she was able to return from Pakistan, less than one year after defendant left the country. Under these circumstances, defendant's contacts are sufficient for in personam jurisdiction, and principles of fair play and substantial justice do not bar enforcement of the decree. McKesson Corp. v. Hackensack Med. Imaging, 197 N.J. 262, 275-76 (2009).

Moreover, defendant has not established a meritorious defense and the default was not obtained by virtue of defective service of process. Therefore he has not established a basis for setting aside the default judgment as permitted by Rule 4:50-1.

Plaintiff's stay in Pakistan was for less than four months. Even if a Pakistani divorce was awarded, recognition of such a divorce, given the circumstances under which it was obtained, would run counter to the public policy of our State. See Fantony v. Fantony, 21 N.J. 525, 533 (1956); Untermann v. Untermann, 19 N.J. 507, 515-17 (1955); Lawler v. Lawler, 2 N.J. 527, 530-53 (1949); Giresi v. Giresi, 137 N.J. Eq. 336, 340-41 (E.& A. 1945). Defendant makes various assertions regarding the viability and consequence of the Pakistani divorce that are simply not supported by the record from which any original documents are noticeably absent. The claim that defendant was entitled to rely on the Pakistani divorce, and that it negates the New Jersey divorce, does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Finally, defendant challenges the counsel fee awards made to plaintiff: $2450 on October 3, 2008, and $2500 on February 27, 2009. In determining whether to award counsel fees in a matrimonial proceeding, a court considers multiple factors, including the financial circumstances of the parties and ability to pay, reasonableness and good faith of their positions, and the fairness of the award. See R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). In this case, plaintiff was subsisting on public assistance and food stamps. At worst, defendant operates a taxi in New York City; at best, he owns a valuable taxi medallion. His only applications to the court unsuccessfully sought to vacate relief granted to plaintiff, including child support. We have not been provided with case information statements or any other meaningful financial information from either party. The partial income tax returns, which the trial court found incredible, do not constitute a sufficient basis for us to conclude that the total of $4950 awarded in counsel fees was inequitable. Defendant has therefore not established that the Family Part judge's decision on this score was a mistaken exercise of discretion.

To reiterate, defendant's position lacks credible support in the record. The trial court's rulings issued upon the only proofs available at the time the rulings were entered. Overall, we therefore see no error in the entry of the order denying reconsideration of the court's initial decision not to vacate the divorce.

1 Reference to that date is made on the record.

2 Based solely on the record before us, which does not include the papers submitted to the trial court on the initial motion, it is unclear whether or not defendant actually owns a medallion that is, owns the right to operate a taxi cab in New York City or whether he is merely licensed as a driver on behalf of a medallion owner. For example, at one point counsel states defendant merely "rents a cab," yet his tax returns indicate he operates a sole proprietorship. Nonetheless, we defer to the trial court's factual findings, noting that defendant has provided nothing in the record on appeal which rebuts the inference of some ownership in some car-service business created by his returns and the other documents presented by plaintiff.

3 Defendant's partial returns reflect the following adjusted gross income: $7750 in 2001, $9860 in 2002, $11,594 in 2003, $9526 in 2004, $2725 in 2005, $6242 in 2006, $8680 in 2007, and $11,245 in 2008.