EINAS IBRAHIM v. MOHAMMED SHAALAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EINAS IBRAHIM,

Plaintiff-Appellant,

v.

MOHAMMED SHAALAN,

Defendant-Respondent.

________________________________________

July 26, 2016

Argued April 11, 2016 Decided

Before Judges Accurso and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1163-08.

Einas Ibrahim, appellant, argued the cause pro se.

Mohammed Shaalan, respondent, argued the cause pro se.

PER CURIAM

Plaintiff Einas Ibrahim appeals two Family Part orders entered on October 4, 2013 and March 4, 2014 concerning child support and custody, and from reconsideration of those orders on May 13, 2014. We reverse only the portion of the October 4, 2013 order that suspended child support and remand that issue to the Family Part to determine any resulting arrears. We affirm all the remaining issues.

I.

Plaintiff and defendant Mohammed Shaalan were married in Egypt in 1996, had one child who was born in 1997, and divorced in New Jersey in 2001. The child was a minor when the subject orders were entered.

Under their property settlement agreement (PSA), the parties shared legal custody of the child, but plaintiff was designated parent of primary residence. Defendant had visitation on alternating weekends. Defendant's child support obligation was $169 per week based on his income of $120,000 and plaintiff's income of $80,000. Plaintiff maintained health insurance for the child as long as it was available through her employer at no cost. They shared the costs of unreimbursed medical expenses with the defendant responsible to pay 65% and plaintiff 35%. Because the parties have been before the Family Part on occasion since November 2002 on issues regarding the child, we limit our discussion to issues raised by this appeal.

In 2007, a parenting coordinator was appointed to assist the parties in their communications regarding the child. The parenting coordinator expenses were to be shared using the 65/35 formula. In 2008, the parenting coordinator also was tasked with assisting the parties "with issues pertaining to [certain] Egyptian proceedings for support and custody." One case involved child support, and the second was a lawsuit by defendant's mother for custody of the child. By then, however, the costs for the coordinator were to be shared on a 50/50 basis. The parties were ordered to respond to each other's text messages and emails about the child within forty-eight hours.

The parties, both then represented by counsel, agreed to a consent order on January 22, 2010 that increased defendant's child support obligation to $725 per week. This amount did not include expenses for summer camp or for the child's travel to Egypt which were shared on a 65/35 basis. Plaintiff agreed to dismiss the Egyptian child support case. Defendant's child support arrears were then $15,000, to be paid in installments of $1250 per month. The order required defendant to pay the child support arrears and continue paying "rent" as per an Egyptian contract only after the Egyptian custody and child support cases were dismissed.1

Six months later, to facilitate dismissal of the Egyptian litigation that still had not been dismissed, defendant was ordered by the Family Part to submit proposed agreements for plaintiff's signature that included specific language needed to dismiss those cases. However, by 2012, when plaintiff had not executed the necessary documents to dismiss the child support case in Egypt, defendant sought enforcement against plaintiff of the prior orders. On May 11, 2012, the Family Part judge sanctioned plaintiff $50 per day and temporarily suspended defendant's payment of child support because plaintiff had not complied with the court's previous order to dismiss the Egyptian child support litigation. On July 11, 2012, the Family Part judge terminated the daily monetary sanction, effective May 23, 2012, and reinstated child support, effective June 27, 2012, because by then agreements had been prepared to dismiss the pending Egyptian cases. Defendant also was to continue to pay "rent" per the Egyptian contract case.

In June 2013, defendant's child support obligation was reduced to $719 per week to account for his cost of adding the child to his health insurance plan. The Family Part judge again ordered the parties to agree on a parenting coordinator, who had not yet been appointed, and directed the coordinator's costs to be shared on a 65/35 basis. Defendant was ordered to respond to texts and e-mails about the child within forty-eight hours, but the order provided that if "defendant feels [he] can no longer continue [the communication] productively," he could notify plaintiff that he will no longer respond and then this would "not be a violation of the order."

On July 23, 2013, plaintiff filed two motions: one for sole custody of the child, reinstatement of the child support that had been suspended, clarification about travel arrangements and payment for college preparation programs. The second motion was for modification of child support. Defendant filed cross-motions for reunification therapy, the appointment of a parenting coordinator, and for the immediate dismissal of the custody action in Egypt. Plaintiff appealed from portions of the resulting orders that were entered on October 4, 2013.

In those orders, the Family Part judge found that defendant's child support obligation should be recalculated, but adjourned that decision for two motion cycles, requiring that plaintiff submit proof of the child's actual and expected expenses and giving defendant the opportunity to respond. The court made certain other decisions that affected the child support obligation. For instance, the court imputed full-time employment to plaintiff at an income of $102,000 annually because she "didn't demonstrate sufficiently . . . something that would allow [the court] . . . to lower [the amount]."

The court decided that defendant's child support obligation would be inclusive of extra-curricular activity expenses. The court rejected plaintiff's contention that the earlier January 22, 2010 child support order was not inclusive of extra-curricular expenses, finding instead that defendant's child support obligation included all expenses except for camp and travel. The judge declined plaintiff's request to sanction defendant for his alleged failure to comply with court orders. As for the sanctions the court previously had ordered against plaintiff, including the suspension of child support, the court declined to reconsider this because the court "could not [have] obtain[ed] [plaintiff's] cooperation in any other way," and because the plaintiff had "caused delay."

The court denied the assessment of attorney's fees against plaintiff because her application was not "meritless." It denied defendant's application to vacate prior orders that required him to pay "rent" per the Egyptian contract. The court again ordered the parties to engage a parenting coordinator, the expenses of which were to be paid by the parties utilizing the familiar 65/35 arrangement.

Plaintiff's request to modify custody was denied because the court did not find it "reasonable to ask for a transfer of custody when you haven't tried to work through the parent coordinator . . . ." The court also rejected plaintiff's application to eliminate defendant's overnights with the child, leaving that decision for the upcoming child support disposition.2

In response to the court's order for additional information, plaintiff provided a chart of the child's actual and predicted expenses that showed claimed expenses of $8,749.50 per month without college preparation courses. Defendant opposed these expenses and their amounts.

On March 4, 2014, the Family Part judge modified defendant's base child support obligation from $725 per week to $735 per week, using a non-guidelines methodology because the parties' combined net incomes exceeded $187,200. The judge imputed income of $102,000 to plaintiff, used defendant's income of $475,000, and considered the factors under N.J.S.A. 2A:34-23, in reaching the determination that defendant's child support obligation was $735 per week.

The court allowed all of the Schedule A and C ("shelter and personal") expenses determined to be reasonable, but disallowed certain transportation, medical and extra-curricular expenses because the court had addressed those outside of the base child support amount. Because the Child Support Guidelines did not apply, she did not reduce any of the expenses for defendant's parenting time because this was "not a material factor in the support calculation." The child support obligation of $735 per week was an increase from the prior obligation, because the new obligation did not include within the base child support an amount for extra-curricular activities or work-related child care that the parties would share, but pay separately, up to a cap of $8,000. Although defendant was responsible for medical insurance, the parties were ordered to split the cost of unreimbursed medical expenses of the child on an 80/20 basis, meaning defendant would pay 80% and plaintiff 20%, after plaintiff paid the first $250 annually.

The court again ordered "participation in parenting coordination therapy," required the parties to cooperate on the child's academic activities, but allowed plaintiff and the child to "select extra-curricular activities without defendant's advance consent."

The parties filed cross-motions for reconsideration of the March 4, 2014 order. Following a hearing, the court rejected plaintiff's request to increase child support to $1,240 per week, observing that her "continued unemployment is [not] a reason to increase [defendant's] obligation for support . . . ." The court rejected plaintiff's contention the child support obligation was a decrease because the new obligation expressly did not include certain other expenses up to a total of $8,000 annually which now were to be paid separately by the parties, with defendant paying 80% of these.

The court did not reconsider its prior finding that the January 22, 2010 consent order included extra-curricular expenses within the base child support amount. The court did not take into consideration a compact disc plaintiff submitted of the January 22, 2010 proceeding because the judge was not provided with a transcript of the proceeding.

The court denied plaintiff's request to be relieved of her 20% share of the extra-curricular expenses because plaintiff had not "met the burden" for reconsideration nor shown "disputed facts" such as to warrant a plenary hearing. The court took plaintiff's debt level into consideration.

Defendant was ordered to pay the accumulated $15,000 in child support arrears in installments of $1,250 per month because plaintiff did not request a lump sum. The court found defendant owed $23,683.71 in "rent" under the Egyptian contract, requiring full payment in fourteen days because there was "no basis to defer the payment further" and no previous allowance for payment of this obligation in installments. The court required defendant to continue paying "rent" to plaintiff, not a trust.

The court entered a separate order on May 13, 2014 that appointed a parenting coordinator, requiring the parties to share the payment of his fees, by plaintiff paying 40% and defendant paying 60%.

Plaintiff appealed portions of these orders. With respect to the October 4, 2013 order, plaintiff raises the following issues

The Trial Court Erred by Denying Plaintiff's Request for Defendant to Pay Sanctions for Noncompliance of Court Orders

The Trial Court Erred When Denying in Part the Plaintiff's Request for Defendant to Pay His Share of Certain Expenses for [the child]

The Trial Court Erred When Denying Plaintiff Request To Compel Defendant To Pay for Parenting Time Not Exercised

The Trial Court Erred When Denying the Plaintiff['s] Request to Vacate the May 11, 2012 Order Suspending Child Support

The Trial Court Erred When Ordering the Defendant to Pay a Periodic Child Support Obligation to Plaintiff in the Amount of $735 per week

Regarding the March 4, 2014 order, plaintiff raises the following issues

The Trial Court Erred When Ordering Plaintiff Shall Be Responsible for the First $250 of Unreimbursed Medical Expenses

The Trial Court Erred When Ordering Plaintiff Shall Be Responsible for 20% of Extracurricular Activities, Summer Education Program, College Preparatory Program, Test Fees, College Visit Trips, and Travel Expenses to Egypt

Regarding the May 13, 2014 parenting coordinator order, plaintiff raises the following issues

The Trial Court Erred When Granting Defendant's Request For Enforcement of Litigant's Rights Requesting A Parenting Coordinator

The Trial Court Erred When Allocating The Parenting Coordinator Fees

II.

We are asked to review post-judgment Family Part orders in this long-standing matrimonial dispute. We accord "great deference to discretionary decisions of Family Part judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in recognition of the "family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J.394, 413 (1998)). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

A.

Plaintiff appeals the denial of her request to sanction defendant because he did not respond to her communications within forty-eight hours. Rule 1:10-3 allows a court, in its discretion, to impose sanctions on a non-obedient party who refuses to comply with a prior order. See Milne, supra, 428 N.J. Super. at 198. The court did not abuse its discretion by declining to sanction defendant on this record. Defendant was no longer mandated to respond within forty-eight hours under the June 10, 2013 order if the communication was not productive.

That said, however, the court erred in failing to reconsider the sanction in its October 4, 2013 order that suspended child support from May 11, 2012 to June 27, 2012. That relief was imposed in the May 11, 2012 order as a means to compel plaintiff, who had delayed in dismissing the child support litigation in Egypt, to sign agreements to accomplish the dismissal. Although child support was restarted by the July 11, 2012 order, the court did not order reimbursement. In denying reconsideration of that issue, the court stated it had no other option when it issued the sanction.

We vacate this portion of the October 4, 2013 order not only because of a lack of factual findings to support the sanction, but also because the court did not articulate a legal basis for denying the child's support for this five-week timeframe. "[T]he right to child support belongs to the child, not the custodial parent[,]" and "[t]he purpose of child support is to benefit [the child], not to protect or support either parent." J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006) (citations omitted). Although R. 5:3-7 allows for economic sanctions against a parent for violations of custody, parenting time, alimony and child support orders, the suspension of child support is not listed as a remedy. The result of the sanction penalized the child, the actions of whom were not shown to have been involved in delaying dismissal of the Egyptian child support litigation. We reverse the decision not to reconsider the suspension of child support and remand that discrete issue to the trial court for further consideration. In reversing, we do not conclude, based on our thorough review of the record, that the court showed any bias against plaintiff. Rather, the record simply was reflective of the challenges posed to our Family Part jurists in high-conflict family matters.

B.

We find no abuse of discretion by the trial court with respect to the remaining portions of the October 4, 2013 orders that plaintiff has appealed. The trial court's factual findings relating to child support are discretionary and receive deference if supported by substantial credible evidence in the record. Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 349 (App. Div. 2009). This court reviews decisions to modify child support based upon an abuse of discretion standard. See Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). The trial court's "[child support] award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Jacoby, supra, 427 N.J. Super. at 116).

Plaintiff appeals the requirement she is responsible to pay the first $250 of unreimbursed medical expenses. Under the Child Support Guidelines, if both parents have health insurance, "the parent who can obtain the most comprehensive coverage at the least cost shall be ordered to provide health insurance for the child." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX A to R. 5:6A, 26(d), at www.gannlaw.com (2016). These same Guidelines include "unreimbursed health care up to and including $250 per child per year[.]" Id. at 8. The court's decision was entirely consistent with these guidelines. We see no abuse of discretion in imposing these same requirements in this non-guidelines case as an incentive to control medical expenses.

Plaintiff appeals from any consideration in the child support calculation of defendant's parenting time. When the court entered its order in May 2014, however, it clarified that because this was a non-guidelines case, it did not reduce plaintiff's expenses to reflect defendant's parenting time. The court also rejected plaintiff's request to increase child support based on this factor. Given the parties difficulties in communication that affected defendant's parenting time, there was no abuse of discretion by the trial court in its determination not to adjust child support on this basis.

Plaintiff appeals her required contribution to unreimbursed health insurance costs. Because health insurance is part of child support, and both of these parents share in that responsibility, it was hardly error to require a sharing of unreimbursed medical expenses when neither parent was providing health insurance for the child.

We find no error in the trial court's determination that the January 22, 2010 child support amount was inclusive of extracurricular expenses. Our careful review of the record does not provide support for plaintiff's position. The court did not err in declining to take the proffered compact disc into consideration when plaintiff did not provide a certified transcript for the court's use nor authenticate the compact disc that was proffered. See R. 1:6-6; N.J.R.E. 901. In any event, our review of the now produced transcript from the 2010 proceeding does not aid plaintiff's cause.

C.

Plaintiff also appeals the March 4, 2014 child support order.3 A determination of the parents' income is crucial to determining a fair child support award. Caplan v. Caplan, 182 N.J. 250, 265 (2005). A trial court can impute income to a parent if it finds that parent is voluntarily unemployed without just cause. Ibid.; see also Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992). The imputation of income is a decision left to the sound discretion of the trial court that is "not capable of precise or exact determination[,] but rather require[es] a trial judge to realistically appraise capacity to earn and job availability." Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015) (alterations in original) (citations omitted) (quoting Gnall v. Gnall, 432 N.J. Super. 129, 158 (App. Div. 2013)).

We find no error in the judge's discretionary decision to impute income to plaintiff in an amount which was soundly supported in the record. Plaintiff has a degree in electrical engineering, an MBA from the Wharton School of the University of Pennsylvania, and has held a financial analyst position at Johnson & Johnson where she made $102,000 in 2009, which excluded a $15,000 signing bonus and $26,000 payment for moving expenses. She continued working through May 2011 but left to go to business school. She admitted having earned about $100,000 per year. In searching for employment, she has described herself as having "managed teams in twenty-two different cities worldwide from China to California" and having "work[ed] with numerous bright startup CEO's and founders and provide them with . . . operational guidance . . . ." These facts supported imputation of income at the level fixed by the court.

The base child support amount and allocation of expenses set forth in the March 4, 2014 order were well-supported by the record, such that further discussion on the issues concerning child support raised by plaintiff warrants limited discussion. See R. 2:11-3(e)(1)(A). We find no abuse of discretion by the court's allowance and disallowance of certain expenses or debts. The lengthy proceedings reflect that the court considered all the arguments raised by the parties. Also given the incomes as found or imputed by the court, there was then no error in according plaintiff 20% responsibility for unreimbursed expenses which accorded proportionately with the parties' income.

D.

Plaintiff further appeals the decision to appoint a parenting coordinator and allocate a portion of those fees to her. A parenting coordinator assists parents "by providing a different forum to discuss parenting problems." Milne, supra, 428 N.J. Super.at 205; see alsoParish v. Parish, 412 N.J. Super.39, 58-59 (App. Div. 2010). Given the history of this case, the record amply supports the judge's decision to appoint a parenting coordinator. As for the allocation of the parenting coordinator's expenses on a 60/40 basis, we also find no error. Historically, the orders that appointed the earlier two coordinators varied in how the costs were shared. The transcript of the oral argument on October 2, 2013 revealed the court was concerned about creating an incentive for the parties to work with the coordinator and not to subvert the process. We will not disturb the trial court's judgment on the financial balance it selected as appropriate to achieve these purposes.

Affirmed in part, reversed only as to the portion of the October 4, 2013 order that suspended child support, and remanded for consideration of that discrete issue consistent with this opinion. We do not retain jurisdiction.

1 The Egyptian contract case obligated defendant to pay monies directly to his daughter as contribution for her shelter expenses. Defendant agreed to make these payments, characterized as "rent," directly to plaintiff via this consent order. It is not clear from the record if this contract is separate from the then pending child support and custody cases in Egypt or all part of that litigation.

2 On October 15, 2013, the judge amended the two October 4, 2014 orders by making defendant's payment of child support and rent arrears conditioned on the parties taking all steps necessary to dismiss the remaining case in Egypt.

3 Plaintiff does not contest that this is a "non-guidelines" case because the defendant's income alone exceeds $187,200. "If the combined net income of the parents is more than $187,200 per year, the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income . . . and the factors specified in N.J.S.A. 2A:34-23[.]" Child Support Guidelines, Pressler & Verniero, supra, Appendix IX-A to R. 5:6A at 3.