SAMAR A. SOUFANATI v. ABDELHAMID S. SOUFANATI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3988-12T2

SAMAR A. SOUFANATI,

Plaintiff-Respondent,

v.

ABDELHAMID S. SOUFANATI,

Defendant-Appellant.

_________________________________

April 8, 2014

Argued March 18, 2014 Decided

Before Judges Messano and Lisa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-748-12.

Santo J. Bonanno argued the cause for appellant.

Kevin B. Kelly argued the cause for respondent (Seton Hall University School of Law Center for Social Justice, attorneys; Mr. Kelly, of counsel and on the brief).

PER CURIAM

Defendant, Abdelhamid S. Soufanati, appeals from (1) the provision in the Judgment of Divorce (JOD), dated November 13, 2012, awarding plaintiff, Samar Soufanati, $300 per week in rehabilitative alimony for three years; (2) portions of two orders entered on January 15, 2013, which denied defendant's motion for reconsideration of the alimony award, and granted plaintiff's cross-motion to reserve the right to bring at a later time a tort claim against defendant based on parental alienation; (3) the portion of the March 13, 2013 order denying defendant's motion for termination of alimony; and (4) the portion of the April 12, 2013 order again denying defendant's motion to terminate alimony.

Defendant argues that the court erred in awarding rehabilitative alimony, and further erred in denying his subsequent applications to modify or eliminate his alimony obligation based upon his unexpected loss of income. Defendant further argues that the order reserving the right to bring a later tort action could be interpreted as extending the statute of limitations indefinitely, and therefore should be stricken. We find no merit in these arguments and affirm in all respects.

The parties were married in an arranged marriage in Jordan in July 1999. At that time, plaintiff was approximately twenty years old, had lived entirely in Jordan, and had very limited education and little or no ability to speak English. Defendant was approximately thirty-six years old, had been living in the United States for about thirteen years, held a college degree, and had a good history of employment with significant earnings.

The parties had three children, born in 2001, 2003, and 2005. Plaintiff stayed at home, caring for the children. At defendant's insistence, plaintiff was precluded from obtaining education or seeking outside employment, and she was discouraged from having friends or associating with people outside the family.

As a result of a domestic violence incident in 2010, plaintiff left the home and, taking the children, moved into a shelter for domestic violence victims. Three weeks later, by court order, the children were returned to defendant, while plaintiff remained in the shelter. The parties thereafter engaged in extensive litigation regarding custody and parenting time arrangements. During that time, plaintiff became employed by the shelter for a time, earning $10 per hour, or $400 per week. She was awarded an $850 per month rent subsidy grant through a State of New Jersey agency. She pursued educational studies, obtained a GED, and moved into a two-bedroom apartment of her own.

Plaintiff filed for divorce near the end of 2011. The case was tried for three days in September 2012. By that time, plaintiff was enrolled in courses at William Paterson University, working toward a bachelor of science degree in chemistry. She had been laid off from the job at the shelter. Defendant was then earning $55,000 per year, which was consistent with his employment history.

Plaintiff requested $300 per week in rehabilitative alimony for three years. She explained that she would require about two more years to obtain her degree, and requested some additional time thereafter to find employment and get on her feet. She expressed the desire to be financially self-sufficient. Although with a thirteen-year marriage she could have made an argument seeking permanent alimony, she did not do so.

The JOD continued custody of the three children with defendant, provided for overnight parenting time for plaintiff with the two younger children, and ordered continued reunification therapy for the oldest child and plaintiff. It is that oldest child, whose relationship with plaintiff is very strained, who is the subject of the reservation of rights later ordered for the possibility of bringing a tort action against defendant for parental alienation. The JOD ordered plaintiff to pay defendant $40 per week in child support, and it awarded plaintiff the $300 per week in rehabilitative alimony for three years as she requested.

Shortly after the JOD was filed, defendant moved for reconsideration, requesting complete elimination of any alimony obligation on the ground that he could not afford it. Plaintiff cross-moved for various items of relief, including a reservation of her right to bring a future tort claim for parental alienation. The court found no basis for reconsideration of the alimony award and denied defendant's motion. As to plaintiff's cross-motion, the colloquy at oral argument made clear that the only purpose for which plaintiff requested a reservation was to avoid the potential preclusion of a future claim under the entire controversy doctrine. The purpose was not to extend any applicable statute of limitations. Plaintiff argued that bringing such an action, while at the same time going through counseling and therapy in an effort to ameliorate the problems between her and her oldest child, would be counter-productive to that goal. Accordingly, plaintiff had no desire to initiate such an action at that time, and expressed the hope that she would never do so. On that basis, the court found it appropriate to enter an order reserving the right, so if the claim was ever brought, it would not be barred by the entire controversy doctrine.

We digress from our discussion of substance to discuss the timeliness of defendant's appeal with respect to the November 13, 2012 JOD and the January 15, 2013 orders. The appeal was filed on April 29, 2013. Defendant had also filed an earlier appeal, which he then withdrew so he could seek further relief in the trial court. Giving defendant the benefit of all tolling provisions provided by Rules 2:4-3(b) and (e), his filing of the present appeal was not within the forty-five day time limit required by Rule 2:4-1(a) with respect to these orders. With credit for the tolling periods applied, the appeal from the November 13, 2012 JOD was required to be filed by February 28, 2013, and the appeal of the January 15, 2013 orders was due by March 13, 2013. Because filing did not occur until April 29, 2013, defendant's appeals from these orders are not properly before us, and we reject them on that basis.

We nevertheless have reviewed the record of proceedings, including the divorce trial. We are satisfied that, on the merits, there is no basis for reversal of these orders. As to the initial award of rehabilitative alimony, the judge's factual findings regarding plaintiff's need for rehabilitative alimony, defendant's ability to pay the amount requested for the time period requested, and the appropriateness of rehabilitative alimony under the circumstances presented, are well supported by the record, and we defer to those findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Indeed, considering the special expertise of Family Part judges, reviewing courts accord enhanced deference to such findings. Id. at 412. Rehabilitative alimony was clearly appropriate for this dependent spouse pulling herself up and transitioning toward economic self-sufficiency. Cox v. Cox, 335 N.J. Super. 465, 474-75 (App. Div. 2000). Finally, the court considered the relevant factors set forth in N.J.S.A. 2A:34-23(b), and did not mistakenly exercise its discretion in determining the amount and duration of the award.

Defendant's reconsideration motion, filed approximately two weeks after the JOD was filed, was nothing more than an expression of his dissatisfaction with the award. His bald statement that he could not afford the amount ordered was no substitute for the required showing of the specific matters or controlling decisions the court overlooked or to which it plainly erred. See R. 4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). The court did not err in denying defendant's reconsideration motion.

Finally, with respect to these orders, we find no mistaken exercise of discretion in the reservation to plaintiff of the right to later bring a tort claim for parental alienation against defendant without being subject to dismissal under the entire controversy doctrine. See Oliver v. Ambrose, 152 N.J. 383, 401 (1998). Contrary to defendant's expressed concern that the order could be read to indefinitely expand the statute of limitations for any such claim, no determination was made regarding the timeliness of a claim that may be brought at some future date. Plaintiff makes no such contention, and we agree that the limitation period is not affected by the January 15, 2013 order. Should a claim be brought, any dispute regarding a possible time bar would be resolved in that case, with analysis of the factual predicate supporting the claim and relevant legal principles.

We now address the final two orders under appeal, those of March 13, 2013 and April 12, 2013, for which the appeal was timely filed. Both of these orders denied motions brought by defendant to eliminate or reduce his alimony obligation. The basis for the motions was a change in defendant's financial circumstances occasioned by his being laid off from his job and receiving only unemployment benefits.

Defendant filed the first of these motions on February 8, 2013. He had been laid off about one month earlier from his job at a county club as a fine dining director, where he was earning $55,000 per year. The information provided by defendant indicated that this was a seasonal layoff, and that his employment was expected to resume at the start of the golfing season within the next few months. The court found this temporary layoff insufficient to support a modification of the alimony award based on changed circumstances. Accordingly, the motion was denied.

Defendant filed a similar motion on March 14, 2013. This time, he produced a letter from his employer stating that he would not be re-hired in the spring and that the layoff was permanent. The court again found an insufficient basis to modify the award because defendant failed to show changed circumstances on a permanent or long-term continuing basis. Again, defendant's motion was denied.

Alimony obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)). However, any change must be permanent to support an alimony modification. Bonanno v. Bonanno, 4 N.J. 268, 275-76 (1950). Temporary unemployment or reduction in income cannot support a request for modification. Lepis, supra, 83 N.J. at 151. Whether a change is of sufficient duration to be deemed permanent, as opposed to temporary, is left to the sound discretion of the Family Part judge. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).

We are satisfied that the court properly exercised its discretion in determining that defendant's layoff of only several months at the time of these two motions was temporary, and was not sufficient to establish the required permanent changed circumstances to warrant consideration of modifying the award. Defendant provided no competent evidence on either of these applications that his unemployed status or earning capacity was anything other than temporary. In denying defendant's motions, the court's findings were supported by ample evidence in the record and the court applied the correct legal principles. We accordingly have no occasion to interfere with the results achieved.

Affirmed.