ARTI SAHNI v. RAJ KHANNA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ARTI SAHNI,

Plaintiff-Appellant,

v.

RAJ KHANNA,

Defendant-Respondent.

June 12, 2015

Argued December 10, 2014 Decided

 
Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-10-03.

James P. Manahan argued the cause for appellant (Bernstein & Manahan, LLC, attorneys; Arti Sahni, on the pro se briefs).

Raj Khanna argued the cause pro se.

PER CURIAM

Plaintiff Arti Sahni and defendant Raj Khanna divorced on December 18, 1997, and have since engaged in substantial motion practice.1 Sahni appeals from a June 11, 2013 order, which, among other things, reduced Khanna's child support obligation. Sahni also appeals the August 30, 2013 order denying reconsideration of the issues addressed in the June 11 decision. Both parties represent themselves. Having reviewed the record and applicable law, we now affirm.

I

The parties have two children. The oldest, born September 1992, graduated from college in the spring of 2014. In December 2012, he moved on campus while attending college. The younger child, born April 1995, was expected to be a freshman in college in the fall of 2013. He too will be living away from home. Earlier, on March 4, 2010, an order entered which allocated the children's college expenses at sixty-nine percent payable by Khanna and thirty-one percent by Sahni.

Unfortunately, in his June 11, 2013 decision, the Family Part judge mistakenly referred to the allocation of expenses as having been agreed to, as opposed to being the result of an earlier order. Sahni now claims that the judge's decision on this issue must be overturned since no agreement was ever reached. The judge's misstatement alone does not enable us to assess the fairness of the percentages on this appeal. We will not address the point further.

Because the older child had commenced living away from home while attending college, the court modified the child support order to $190 per week, payable until the youngest child also began to attend college in the fall of 2013. At that point, the Family Part judge directed that child support would automatically be reduced to $145 weekly.

In calculating the reduction, the judge considered the factors set forth in N.J.S.A. 2A:34-23(a), not the child support guidelines. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2625 (2015); Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012). He discussed each factor enumerated in the statute, based on the parties' submissions, in his thorough and cogent written decision.

On July 3, 2013, Sahni filed a motion for reconsideration. She sought recalculation of child support pursuant to the guidelines, contending that the judge had misconstrued Jacoby. She also sought a stay of any reduction; reallocation of college expense contributions; discovery as to Khanna's alleged "foreign investments, assets and property held by defendant but belonging to plaintiff;" and counsel fees for Khanna's "frivolous applications to the court."

Sahni's thirty-four-paragraph affidavit in support of the notice of motion for reconsideration reiterated much of the parties' nineteen-year history, beginning with the birth of the parties' second child. She alleged not only that Khanna had undisclosed assets secreted abroad, but also that since 1991 he had wrongfully kept her valuable jewelry abroad and that as a result she should be entitled to discovery to explore his real financial circumstances. The affidavit also attacked Khanna's "entitlement" to any reduction in child support because of the seventeen-year litigation history between the parties, including Khanna's alleged failure to: timely pay guideline support, meet his financial obligations to the children, provide emotional support for them, and file truthful information with the court.

The judge denied reconsideration, recalculation of child support or college expense contribution, discovery of Khanna's assets, and counsel fees. Relying on the rules relative to reconsideration, that no relief is granted unless the movant submits new information, or is able to establish that the earlier decision was rendered on a palpably incorrect or irrational basis, or that the court failed to consider competent relevant evidence, the judge denied the application. Additionally, the judge opined that Khanna's filing was not made in bad faith, but only because of the significant change of circumstances that occurred when the oldest child moved away from home. The judge's decision denying reconsideration was memorialized in a second cogent and thorough written decision.

II

We defer to the Family Part's factfinding because of the court's "special expertise" in family matters and its "superior ability to gauge the credibility of the witnesses who testify before it." Div. of Youth & Family Servs. v. F.M., 211 N.J.420, 448 (2012); Cesare v. Cesare, 154 N.J.394, 413 (1998). We similarly defer to decisions that are committed to the court's exercise of discretion. Milne v. Goldenberg, 428 N.J. Super.184, 197 (App. Div. 2012); Larbig v. Larbig, 384 N.J. Super.17, 23 (App. Div. 2006). Hence modification of child support orders are reviewed for abuse of discretion. Ibid.

Whether to grant a motion for reconsideration also rests within a trial court's sound discretion, exercised when required by the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). A trial court's exercise of discretion is governed by the following standard

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . .

Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence.

[Id. at 384 (alteration in original) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

III

The merits of the original order and denial of reconsideration are essentially interwoven. To summarize, Sahni contends that the Family Part judge's initial decision is palpably incorrect or irrational, and that reconsideration is therefore warranted. She also contends that the judge failed to accord her allegations sufficient weight and failed to adequately consider the parties' prior history. We simply disagree.

Our review of the judge's decision and the record establishes that he properly exercised his discretion by modifying child support due to an uncontraverted change of circumstances, namely, the older child's move away from home. That the judge employed the statutory factors in making his calculations, and not the guidelines, was based on his correct interpretation of the law. See Jacoby, supra, 427 N.J. Super. at 113. That case does not hold, as Sahni urges, that a significant change of circumstances for child support calculation purposes only occurs when all the supported children have left home. That only one child leaves home suffices to create a change of circumstances.

Nor do we find persuasive Sahni's contention that the reduction in child support should enable her to pursue discovery of the assets Khanna supposedly holds abroad. Other than her bare allegation, Sahni has no proof that such assets exist, and that if they exist, they were improperly withheld at any time including when child support was modified.

Orders for child support "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. "Upon a motion to modify child support, the moving party has the burden to make a prima facie showing of changed circumstances warranting relief." Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.) certif. denied, 174 N.J. 364 (2002). Khanna made such a showing here.

IV

On reconsideration, Sahni simply repeated her earlier allegations. In no way did she suggest that the trial court did not consider, or failed to appreciate the significance of, probative, competent evidence.2 The judge noted this in his written opinion: "[Sahni] simply restates the majority of her previous claims . . . [Khanna] is hiding assets in India . .. . [Sahni] did not show that the [c]ourt overlooked any controlling decisions or matters." Thus she did not meet her burden of making any showing that reconsideration, or discovery for that matter, was warranted.

As to counsel fees, Sahni argues that by virtue of filing motions while representing himself, Khanna has misled the court into believing his financial circumstances are more limited than is the case. She also asserts that by having to defend herself, she has for years expended substantial sums in counsel fees, which monies diminished her ability to support the children. These contentions in no way justify an award of counsel fees.

There was nothing frivolous about Khanna's application. We therefore agree with the judge's decision that the application was pursued in good faith. The judge did not abuse his discretion in declining to award fees. See Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).

Affirmed.

1 A February 15, 2006 order, for example, required future motions or orders to show cause filed by the parties to be reviewed by the Family Part presiding judge before filing fees were accepted.

2 Sahni supplied e-mail correspondence between her son's bank in India and herself to demonstrate that Khanna has funds in an international banking institution. The documentation merely confirmed, however, that the parties' son has an account in a foreign bank.