SAMAR A. SOUFANATI VS. ABELHAMID S. SOUFANATI (FM-16-0748-12, PASSAIC COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5713-14T4
A-5297-15T4
SAMAR A. SOUFANATI,
Plaintiff-Respondent/
Cross-Appellant,
v.
ABELHAMID S. SOUFANATI,
Defendant-Appellant/
Cross-Respondent.
______________________________
SAMAR A. SOUFANATI,
Plaintiff-Respondent,
v.
ABELHAMID S. SOUFANATI,
Defendant-Appellant.
_____________________________________________________
Argued (A-5713-14) and Submitted (A-5297-15)
August 15, 2017 – Decided October 6, 2017
Before Judges Messano and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FM-16-0748-12.
Santo J. Bonanno argued the cause for
appellant/cross-respondent in A-5713-14 (Mr.
Bonanno, on the briefs in A-5713-14 and A-
5297-15).
Kevin B. Kelly argued the cause for
respondent/cross-appellant in A-5713-14
(Seton Hall University School of Law Center
for Social Justice, attorneys; Mr. Kelly, of
counsel and on the brief).
Respondent has not filed a brief in A-5297-
15.
PER CURIAM
We calendared these appeals back-to-back and now consolidate
them to issue a single opinion. Plaintiff Samar A. Soufanati and
defendant Abelhamid S. Soufanati married in 1999 and had three
children born in 2001, 2003 and 2005. Following trial in November
2012, the Family Part entered a final judgment of divorce (JOD)
awarding defendant custody of the three children, ordering
plaintiff to pay $40 per week in child support for all three
children and ordering defendant to pay plaintiff $300 per week in
rehabilitative alimony for three years.
Post-judgment motion practice began almost immediately,
resulting in the denial of defendant's motion to terminate alimony
based on an alleged change in circumstances. We affirmed the
trial court's orders on appeal in an unpublished opinion.
Soufanati v. Soufanati, No. A-3988-12 (App. Div. Apr. 8, 2014).
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In July 2014, defendant again moved to terminate alimony and
to increase child support. Plaintiff cross-moved, seeking primary
residential custody of her two youngest children, enforcement of
defendant's alimony obligations and recalculation of child support
pursuant to the Child Support Guidelines (the Guidelines). The
judge's September 30, 2014 orders reduced defendant's alimony
obligations to $75 per week, plus $35 per week toward arrears,
increased child support to $175, and ordered a plenary hearing on
custody.1 In the court's December 2014 order on plaintiff's motion
for reconsideration, the judge ordered a plenary hearing on
"alimony, child support, parenting time and custody." The hearing
took place in February and April 2015.
In his June 5, 2015 order (the June 2015 order) that
accompanied his written decision, the judge summarized the
testimony of plaintiff, defendant, defendant's employer and two
social workers who counseled the children.2 He found "[n]othing
of any significance ha[d] changed" since entry of the JOD. The
judge noted that plaintiff had "improved her economic picture by
completing her education, receiving her de[g]ree and getting a
job," but that this was not "dispositive of the issue of custody."
1
One of the orders increased child support, the other postponed
a decision until after the plenary hearing.
2
Defendant has not provided transcripts of the hearing.
3 A-5713-14T4
The judge noted plaintiff's relationship with her eldest
daughter was "a very difficult project, in progress." He found
that both plaintiff and defendant "express[ed] great reluctance
at splitting the children up [with] the two younger ones coming
[to live] with plaintiff and [the eldest] staying with the
defendant." He denied plaintiff's motion for a change of
residential custody and ordered child support of $161 per week in
accordance with the Guidelines' sole parenting worksheet.
Both parties moved for reconsideration. Plaintiff argued the
judge failed to address other issues in dispute at the plenary
hearing, including the September 2014 reduction of defendant's
alimony obligations and which party could claim the children as
tax exemptions. Defendant opposed the motion, arguing it was
untimely. He also cross-moved seeking an adjustment of the
parenting time schedule, clarification as to whether his alimony
obligation has "ended as plaintiff no longer need[ed]
rehabilitation" and recalculation of child support as a result.
At oral argument on the motions, the judge acknowledged an
error in his previous calculations under the Guidelines.
Recognizing the parties alternated year to year as to the number
of children claimed as dependents, the judge generated two
worksheets and averaged the child support obligation. The judge
stated he reduced defendant's alimony obligation because plaintiff
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had made significant progress in her education and employment, and
he rejected her request to "extend the term." He filed two orders
on July 24, 2015 (the July 2015 orders), which we review in A-
5713-14 and plaintiff's cross-appeal. The orders continued
defendant's alimony obligation at $75 per week, ordered plaintiff
to pay child support of $138 per week and denied defendant's
request to have alternating weekend parenting time.
Initially, we emphasize that only the July 2015 orders are
before us. See R. 2:4-1 (requiring appeals from final judgments
be taken within forty-five days of their entry). "[T]he timely
filing and service of a motion . . . for rehearing or
reconsideration . . . pursuant to R. 4:49-2" tolls the running of
the 45-day limit. R. 2:4-3(e). Here, however, plaintiff's motion
for reconsideration was filed no earlier than June 29, 2015,
twenty-four days after the judge's order that followed the plenary
hearing, and defendant's opposition and cross-motion was seemingly
filed on July 6, 2015, thirty days after the order following the
hearing was filed.
The judge decided the motions for reconsideration on July 24,
2015. Defendant's appeal was not filed until August 17, 2015,
twenty-four days later. As a result, any appeal from the earlier
June 2015 order is untimely. Additionally, defendant's notice of
appeal only lists the July 24, 2015 order. See Fusco v. Bd. of
5 A-5713-14T4
Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.)
(citations omitted), certif. denied, 174 N.J. 544 (2002) (only
orders listed in the notice of appeal are subject to review).
Defendant argues the judge should have terminated alimony
earlier because plaintiff no longer needed rehabilitative alimony.
In her cross-appeal, plaintiff argues that the judge erred in
reducing the alimony award.
"Rehabilitative alimony is a short-term award for the purpose
of financially supporting a spouse while he or she prepares to
reenter the workforce through training or education." Gnall v.
Gnall, 222 N.J. 414, 431 (2015) (citing Lepis v. Lepis, 83 N.J.
139, 162 (1980)). N.J.S.A. 2A:34-23(b)(d) requires the court to
consider a number of factors in setting any alimony award or in
modifying an existing award, including modification of an award
of rehabilitative alimony. See Crews v. Crews, 164 N.J. 11, 34
(2000).
Regarding the issue of alimony, we do not treat the July 2015
orders as decisions made on reconsideration. It is clear from the
record that the judge ordered a plenary hearing to resolve the
alimony dispute. In his written decision following the hearing,
the judge cited the testimony of plaintiff and defendant regarding
their current financial circumstances. At the time, an interim
order had reduced defendant's alimony payments to $75 per week.
6 A-5713-14T4
Following the hearing, the judge left this figure unchanged,
although his June 2015 order made no mention of alimony.
In her motion for reconsideration, plaintiff again objected
to the reduction but furnished no new information. Defendant's
certification merely asked the court for "clarification of whether
or not [his] alimony [obligation was] ended."
As already noted, defendant failed to furnish any transcripts
from the plenary hearing. In response to a motion by plaintiff
objecting to the continued prosecution of this appeal, a panel of
our colleagues entered an order on January 26, 2016, that provided
for dismissal of the appeal if the merits panel determined
"transcripts [were] necessary for [our] review." We conclude
transcripts of the plenary hearing are necessary to consider this
aspect of the appeal and plaintiff's cross-appeal. Simply put,
without the transcripts of the plenary hearing, we are in no
position to assess whether the judge's decision to modify the
alimony award was a reasonable exercise of discretion based upon
consideration of the appropriate statutory factors. We affirm the
July 2015 orders regarding defendant's alimony obligations.3
Defendant next contends it was error not to grant him
alternate weekend parenting time. Under prior orders, plaintiff
3
Defendant's alimony obligations ceased in fall 2015.
7 A-5713-14T4
was awarded weekend parenting time with the two youngest children
because at that time defendant worked every weekend. In his
written decision following the plenary hearing, the judge did not
expressly address the issue, except to find that the two children
"enjoy[ed] the time they spend with their mother," and "loved
their father very much as well." The June 2015 order denied
plaintiff's motion for a change in custody of the two children but
did not address any modification of defendant's parenting time.
We gather from the judge's written decision, in which he
summarized the counselors' testimony, that he was unpersuaded
defendant's lack of weekend visitation was negatively affecting
any of the children. In the certification supporting his cross-
motion for reconsideration, defendant argued his eldest daughter
missed spending weekend time with her two siblings and that changes
in his employment routine warranted a change in weekend parenting
time. He presented nothing further to support these claims.
Reconsideration is left to the sound discretion of the court
and "is not appropriate merely because a litigant is dissatisfied
with a decision . . . or wishes to reargue a motion." Palombi v.
Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010).
Reconsideration is warranted when the court "expressed its
decision based upon a palpably incorrect or irrational basis."
8 A-5713-14T4
Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
Div. 1990)).
Where a prior court order exists specifying the terms of
residential custody and parenting time, as was the case here, a
parent seeking to alter those terms has the burden of demonstrating
changed circumstances that have affected the children and would
justify such alteration. Hand v. Hand, 391 N.J. Super. 102, 105
(App. Div. 2007). We cannot conclude the judge, who actually
heard the testimony of the parties and the treating counsellors,
erred in denying any modification, and he certainly did not abuse
his discretion by refusing to reconsider the decision in light of
the lack of any additional evidence offered by defendant.
Lastly, defendant contends the judge based his child support
award upon the erroneous factual finding that the parties' oldest
daughter, who is estranged from plaintiff, is a "visiting child"
for purposes of calculating the Guidelines. Plaintiff's motion
for reconsideration specifically argued the judge had applied the
wrong worksheet, i.e., the sole parenting worksheet, for
calculating support from the Guidelines following the plenary
hearing. Defendant's certification did not challenge the child
support award of $175 in the June 2015 order.
At oral argument on the reconsideration motions, the judge
immediately recognized his earlier error, recalculated the
9 A-5713-14T4
guidelines and directed his staff to make copies and circulate
them. The judge credited plaintiff with 104 overnights, i.e.,
every weekend night for the entire year, and did not differentiate
between the two youngest children and the parties' oldest daughter
who never spent an overnight with plaintiff. However, defendant
never objected to the Guidelines worksheet at the hearing even
though it resulted in a reduction of plaintiff's child support
payments as she had requested.
"The trial court has substantial discretion in making a child
support award. . . . If consistent with the law, such an 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."'" Foust v. Glaser, 340 N.J. Super.
312, 315-16 (App. Div. 2001) (citations omitted) (quoting Raynor
v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). Child
support awards, including modifications, shall be made in
accordance with the Guidelines and supplemented with consideration
of the statutory factors contained in N.J.S.A. 2A:34-23. Pascale
v. Pascale, 140 N.J. 583, 593 (1995). However, "'[t]he key to
both the [G]uidelines and the statutory factors is flexibility and
the best interest of children.'" Caplan v. Caplan, 182 N.J. 250,
266 (2005) (first alteration in original) (quoting Pascale, supra,
140 N.J. at 594).
10 A-5713-14T4
On appeal, defendant offers a three-sentence argument that
the judge erred by not differentiating between the eldest daughter
and the other two children on the shared parenting Guidelines
worksheet. He fails to explain what the proper calculation should
have been, except to say that he would have received a larger
award. "We will not consider mere conclusory statements by the
brief writer." Freeman v. State, 347 N.J. Super. 11, 32 (App.
Div. 2002) (citing Miller v. Reis, 189 N.J. Super. 437, 441 (App.
Div. 1983)). Nor will we determine based on this argument that
the judge's decision was necessarily a mistaken exercise of
discretion.
In sum, we affirm the July 2015 orders that are the subject
of A-5713-14 and plaintiff's cross-appeal.
Defendant's appeal in A-5297-15 arises from events that
occurred approximately one year later, in July 2016. Plaintiff
moved for a temporary change in custody of the parties' younger
daughter, enforcement of prior orders compelling defendant to
cooperate with counsellors and payment of defendant's share of
camp expenses for the two youngest children. Defendant cross-
moved seeking reimbursement of expenses for the children's
extracurricular activities, recalculation of child support and
counsel fees.
11 A-5713-14T4
Defendant's certification cited specific examples of extra-
curricular expenses for the three children and requested plaintiff
contribute 50%, or $381. Defendant's certification provided no
information regarding his current income and only asked the judge
to order plaintiff to bring her latest pay stubs to court because
she refused to provide them voluntarily.
After considering oral argument, the judge observed that
defendant had not "shown . . . anything to lead [the judge] to
recalculate child support, at this point." The judge found
defendant failed to demonstrate "a change in circumstances . . .
in any way." He denied defendant's request for reimbursement of
extra-curricular expenses, concluding they were "included in child
support" in accordance with the Guidelines. The judge denied
counsel fees to both parties.
Defendant argues the judge erred in not recalculating child
support, not awarding reimbursement of extra-curricular
activities, yet awarding plaintiff reimbursement for camp
expenses, and not awarding counsel fees.4 These arguments lack
4
Defendant's brief includes information obtained from plaintiff
after entry of the July 2016 order under review. Defendant never
sought leave to supplement the record and we do not consider this
information submitted in violation of the Rules. Moreover,
defendant failed to cite a single legal authority in his brief,
and, although each argument was framed with an appropriate point
heading, the entire argument for all three points raised is less
than two pages and contains nothing but conclusory statements.
12 A-5713-14T4
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed in A-5297-15.
13 A-5713-14T4