DINA MUSTAFA VS. MUSTAFA MUHSIN (FM-02-1711-15, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2543-17T2
DINA MUSTAFA,
Plaintiff-Respondent,
v.
MUSTAFA MUHSIN,
Defendant-Appellant.
____________________________
Argued March 6, 2019 – Decided May 7, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1711-15.
Jonathan S. Lasser argued the cause for appellant
(Dario Albert Metz & Eyerman LLC, attorneys; Shelley
D. Albert, on the brief).
Seth R. Parker argued the cause for respondent
(Moskowitz Law Group, LLC, attorneys; Seth R.
Parker, on the brief).
PER CURIAM
Defendant Mustafa Muhsin appeals from a January 19, 2018 order
denying reconsideration of a November 16, 2017 order awarding plaintiff Dina
Mustafa $8767.44 in attorney fees and costs in connection with post-judgment
divorce litigation. After reviewing the record in light of the contentions
advanced on appeal, we affirm substantially for the reasons placed on the record
by the judge in her comprehensive opinion.
The parties were married in Iraq in 1984, had three children and divorced
in March 2016. Plaintiff lives in Abu Dhabi, while defendant and the three
children live in New Jersey. Prior to the divorce judgment, plaintiff entered a
guilty plea to fourth-degree contempt, N.J.S.A. 2C: 29-9(a), for not returning
her daughter to defendant after being ordered to do so. 1
Defendant retained counsel after the November 16, 2017 award of counsel
fees. His lawyer represented him in his motion for reconsideration. The judge
reaffirmed her prior findings when denying reconsideration. We review an
award of attorney's fees for a "clear abuse of discretion," and disturb an award
"only on the rarest of occasions." Heyert v. Taddese, 431 N.J. Super. 388, 444
(App. Div. 2013).
1
We note that plaintiff was previously ordered in 2015 to pay more than
$53,000 in counsel fees, which she is paying defendant's counsel at the rate of
$100 per week pursuant to the parties' divorce agreement.
A-2543-17T2
2
Under Rule 4:49-2, a litigant may move for "rehearing or reconsideration"
of an order or judgment within twenty days of its entry. Such a motion must
include "a statement of the matters or controlling decisions which counsel
believes the court has overlooked or as to which it has erred . . . ." Ibid. The
proper object of such a motion is to correct a court's error or oversight, and not
to "re-argue [a] motion that has already been heard for the purpose of taking the
proverbial second bite of the apple." State v. Fitzsimmons, 286 N.J. Super. 141,
147 (App. Div. 1995).
The trial court properly was not swayed by belated submissions from
defendant on his motion for reconsideration, after retaining counsel. See R.
4:49-2; see also Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div.
1996).
The judge stated on the record that she reviewed all the submissions
previously submitted and those submitted on reconsideration. Defendant
complains that he did not receive notice prior to the November 16, 2017 counsel
fee decision. As the judge pointed out, that date was not an opportunity for
further argument. Neither party appeared before the court on November 16,
2017.
A-2543-17T2
3
Rule 5:3-5(c) and Rule 4:42-9 govern attorney fee awards in Family
matters. In Mani v. Mani, 183 N.J. 70, 94-95 (2005), the Supreme Court
summarized the attorney fee inquiry as follows:
[I]n awarding counsel fees, the court must consider
whether the party requesting the fees is in financial
need; whether the party against whom the fees are
sought has the ability to pay; the good or bad faith of
either party in pursuing or defending the action; the
nature and extent of the services rendered; and the
reasonableness of the fees.
[Ibid.]
The judge considered the Mani factors.
In concluding defendant had litigated in bad faith, the judge found he
involved the children in the financial disputes between the parties and also
distanced the children from their mother by denying plaintiff parenting time.
The judge appointed a mediator and a parenting time supervisor to facilitate
contact between plaintiff and the children. She found that, after defendant
sought an increase in child support, although given numerous opportunities to
provide current income information, he failed to do so. See R. 5:5-4(a)
(requiring a party to provide current financial information when making a
motion for modification). He also sought reimbursement of expenses when none
were owing.
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4
The judge reviewed the credentials of plaintiff's counsel, and the
reasonableness of both her hourly rate and the number of hours expended. The
judge's decision to deny reconsideration is not a clear abuse of discretion and is
supported by the record. We affirm substantially for the reasons expressed on
the record at the denial of reconsideration.
If defendant seeks relief, the court should consider a motion to deduct his
counsel fees from the outstanding fees plaintiff owes defense counsel. We
express no opinion as to the result of such an application.
Affirmed.
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