FRIDA RASOOL v. SAMIUL EHSAN KHAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRIDA RASOOL,

Plaintiff-Appellant/

Cross-Respondent,

v.

SAMIUL EHSAN KHAN,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

September 16, 2015

Submitted November 17, 2014 Decided

Before Judges Lihotz, Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-536-13.

Awad & Khoury, LLP, attorneys for appellant/cross-respondent (Abed Awad and Shaun Boparai, on the briefs).

Robert T. Corcoran, P.C., attorneys for respondent/cross-appellant (Mr. Corcoran, of counsel and on the brief; Sara J. Corcoran, on the briefs).

PER CURIAM

In this non-dissolution matter, we affirm the trial court's decision to deny various forms of relief requested by plaintiff Frida Rasool, and the denial of the requests made by plaintiff and defendant, Samiul Ehsan Khan, for counsel fees.

Plaintiff, a Swedish citizen, and defendant, a Canadian citizen, were married in Sweden in July 2001. Their three children were born in Sweden in 2002, 2004 and 2006, and have dual Swedish and Canadian citizenship. Defendant attended law school in the United States and was employed at a law firm in New York, beginning in November 2009.

In November 2011, plaintiff took the three children to Sweden from New Jersey without defendant's knowledge. Defendant filed an application under the Hague Convention on the Civil Aspects of International Child Abduction. In January 2012, while that matter was pending before the Hague Convention court, the parties entered into an agreement that provided, in part

1. The children's place of residence is in New Jersey, USA.

2. The children shall continue to remain under the parties' joint custody.

3. The children shall have access to both their parents to an equal extent and be able to stay and reside with them, with the one as much as with the other.

. . . .

6. Samiul Khan shall, with effect from 11th February 2012, pay a monthly sum in maintenance to Frida Rasool for her and the children in the total sum of USD 5,000. This amount shall include, inter alia, the payment of rent and electricity for the dwelling, etc.

The resulting final decision, entered in the Stockholm District Court (the Stockholm order) provided, in part

1. The District Court hereby makes an order to the effect that the children . . . shall be transferred to Samiul Khan.

2. Frida Rasool shall ensure that the three children are handed over to Samiul Khan at Landvetter Airport in Gothenburg by no later than 14.00 hours on Friday, 10th February 2012. In the event that the handover has not taken place by the last mentioned time at the latest, the three children are to be collected through the agency of the competent police and handed over to Samiul Khan.

Plaintiff returned to New Jersey with the children. In September 2012, plaintiff filed an application to relocate with the children to Sweden. Defendant filed a cross-motion seeking enforcement of the Stockholm order, the entry of an order setting forth a specific parenting time schedule and appointing a parenting coordinator, and counsel fees. By order dated January 10, 2013, the court dismissed plaintiff's application and referred the parties to mediation for them to agree upon a schedule for parenting time.

Plaintiff filed a motion for reconsideration of the January 10, 2013 order, asking the court to find as a matter of law that she was the parent of primary residence, or in the alternative, to conduct a plenary hearing to make that determination. The motion was subsequently withdrawn without prejudice.

In September 2013, plaintiff filed a verified complaint and motion seeking various forms of relief, including a declaration that she was the parent of primary residence with the authority to determine the children's religious upbringing. The motion did not request a plenary hearing. Defendant filed a cross-motion.

The trial judge entered an order, dated December 3, 2013, that was accompanied by a written statement of reasons. By consent of both parties, the court registered the Stockholm order and its record with the Superior Court of New Jersey. Among the other rulings memorialized, the order directed defendant to pay plaintiff $5,000 in unallocated monthly support as required by the Stockholm order and denied both parties' requests for counsel fees.

Plaintiff appeals from those paragraphs in the order which denied: her request to compel defendant to sign a release to permit her access to defendant's immigration and employment records, her claim for arrears (without prejudice), her request that defendant refrain from having his caregiver pick up the children from school and watch them until he returns home from work, her request to alter the parenting plan,1 her request to be declared the parent of primary residence and counsel fees. In her notice of appeal, plaintiff states she also appeals the denial of her request for a plenary hearing.

In his statement of reasons, the trial judge explicitly referred to the definition of the term "parent of primary residence" in Appendix IX-A 14(b)(1) to the Rules of Court as "the parent with whom the [children] spend most of [their] overnight time. The primary residence is the home where the child resides more than 50% of the overnights annually." Defendant compiled a history of overnights as of November 18, 2013, which plaintiff did not dispute. The judge compared the nights spent with each parent and found plaintiff did not meet the definition set forth in the Rules of Court.2

In denying plaintiff's request for discovery of defendant's employment and immigration records, the judge acknowledged defendant's concerns for his privacy in light of the acrimonious nature of the litigation and plaintiff's prior unauthorized removal of the children from the country. Defendant had disclosed his immigration status and the employment terms at his new law firm. Although sympathetic to plaintiff's immigration issues, the judge found she had not established that the additional information she sought would "advance her legal interests in any manner" and that, absent such a showing, defendant's privacy interest should not be compromised. As to plaintiff's request that defendant be prevented from using a caregiver to pick up the children or care for them when he is not available, the judge noted plaintiff "did not even suggest" the caregiver was "in any way, unfit." It was this caregiver who cared for the children while plaintiff was "stranded in Canada" for over one hundred days. The judge found the use of the caregiver to be both practical and in the best interest of the children "to avoid instances that may embroil them in the conflict between their parents."

In her appeal, plaintiff raises the following issues

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO SCHEDULE A PLENARY HEARING IN LIGHT OF THE NUMEROUS GENUINE MATERIAL FACTUAL DISPUTES BETWEEN THE PARTIES AS EVIDENCED BY THEIR DIAMETRICALLY CONFLICTING CERTIFICATIONS AND SUBMISSIONS.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT'S REQUEST FOR DISCOVERY.

POINT III

THE COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION BY FAILING TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AND RELIED UPON THE INCORRECT LEGAL STANDARD, IN ITS DECISION REGARDING WHICH PARENT IS THE PARENT OF PRIMARY RESIDENCE.

POINT IV

THE COURT ABUSED ITS DISCRETION IN FAILING TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN ITS DECISION REGARDING THE RELIGIOUS REARING DISPUTE BETWEEN THE PARTIES.

POINT V

THE COURT ABUSED ITS DISCRETION IN FAILING TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN ITS DECISION REGARDING THE PARENTING TIME SCHEDULE THAT WOULD SERVE THE CHILDREN'S BEST INTERESTS.

POINT VI

THE COURT COMMITTED REVERSIBLE ERROR IN DENYING THE APPELLANT'S REQUEST TO GRANT HER THE AUTHORITY TO CARE FOR THE CHILDREN WHEN THE RESPONDENT IS NOT AVAILABLE.

POINT VII

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT THE APPELLANT COUNSEL FEES TO LEVEL THE PLAYING FIELD.

POINT VIII

THE DIFFERENCES BETWEEN THE DISCOVERY RULES FOR DISSOLUTION AND NON-DISSOLUTION MATTERS AS SET FORTH IN THE RULES OF COURT VIOLATE THE APPELLANT'S RIGHT TO EQUAL PROTECTION UNDER THE LAW. (NOT RAISED BELOW).

POINT IX

ON REMAND, THE CASE SHOULD BE ASSIGNED TO A DIFFERENT JUDGE IN ORDER TO PRESERVE THE APPEARANCE OF A FAIR AND UNPREJUDICED HEARING.

In his cross-appeal, defendant challenges the denial of his request for counsel fees.

Plaintiff's equal protection argument, raised for the first time on appeal, and her contention that this matter be assigned to a different judge lack sufficient merit to warrant our discussion in a written opinion. R. 2:11-3(e)(1)(E).

The context for plaintiff's motion is pertinent to our review of the arguments she advances in Points I, II, III, IV, V and VI. The parties entered into an agreement that addressed the children's residence, custody, and that each parent would have equal time with the children. This weighs heavily in our review of plaintiff's arguments that the trial judge abused his discretion in denying her requests for discovery and a ruling that she was the parent of primary residence with authority to determine the religious upbringing of the children. As to plaintiff's assertion the judge erred in failing to conduct a plenary hearing, we note plaintiff's motion did not explicitly request a plenary hearing. The issue as to whether plaintiff was the parent of primary residence was a legal one, in which the judge correctly applied the standard set forth in our Rules of Court. Despite plaintiff's argument to the contrary, the alleged conflicts in the parties' certifications do not present a dispute regarding a material fact that required the court to conduct a plenary hearing before it could make that determination. We find no merit in plaintiff's arguments that the trial judge abused his discretion on these issues.

We then turn to the arguments of each party that the trial judge abused his discretion in denying their requests for counsel fees. We review an award of counsel fees for abuse of discretion. Where the judge follows the law and "makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000) (citation omitted). In addressing each party's application for counsel fees, the judge considered the criteria set forth in Rule 4:42-9(b), RPC 1.5 and Rule 5:3-5(c), and made specific findings to support his decision to deny both requests. We discern no abuse of discretion in his decision.

Affirmed.

1 The court also denied defendant's request to alter the parenting plan. He has not appealed from that ruling.

2 For a period of 102 days, plaintiff was excluded from the United States due to immigration issues. The judge did not count those days in his calculation.