SURAIYA BEGUM VS. SENTHILKUMAR PALANISAMY HEWITT (FM-04-0760-15, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4295-19
SURAIYA BEGUM,
Plaintiff-Respondent,
v.
SENTHILKUMAR PALANISAMY
HEWITT, a/k/a SENTHIL
KUMAR PALANISAMY,
Defendant-Appellant,
and
KATHRYN HEWITT,
Defendant.
____________________________
Submitted April 19, 2021 – Decided May 14, 2021
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FM-04-0760-15.
Senthilkumar Palanisamy Hewitt, appellant pro se.
Freidel & Kramer, PC, attorneys for respondent (Talbot
B. Kramer Jr., on the brief).
PER CURIAM
This appeal arises from ongoing litigation between defendant/father and
plaintiff/mother concerning custody, care, parenting time, and related issues
involving their minor daughter, Alexis,1 who was born in the United States but
allowed to relocate to Singapore with her mother, a Singapore citizen, pursuant
to a consent order. Defendant, who was born in India, is a citizen and resident
of the United States.
Among other things, the consent order, which was later memorialized in
a series of amended judgments, gave both parties shared access to Alexis's
education and medical records; allowed Alexis to travel to the United States with
her mother to visit defendant, which travel was later hampered by a ten-year
immigration ban on plaintiff re-entering the United States; retained jurisdiction
over all issues related to Alexis in New Jersey courts; and authorized the
domestication of the New Jersey order in Singapore, which later proved
problematic in Singapore courts. A subsequent amendment entered following a
1
As the compelling interest of protecting the child's privacy outweighs the
Judiciary's commitment to transparency in this matter, a fictitious first name is
used for the minor child.
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2
plenary hearing added a provision permitting plaintiff to apply for Singapore
citizenship for Alexis while Alexis maintained her United States citizenship in
order for Alexis to qualify for the government benefits conferred on Singapore
citizens, including medical, educational, and childcare subsidies.
In our recent unpublished decision, which we incorporate by reference,
we detailed the facts and extensive motion practice in the case and affirmed the
September 20, 2019 Family Part order denying defendant reconsideration of an
earlier June 4, 2019 order addressing the above issues as well as others. Begum
v. Hewitt, No. A-0562-19 (App. Div. Nov. 16, 2020), certif. denied, ___ N.J.
___ (2021). Specifically, we affirmed the judge's decision (1) allowing Alexis
to obtain Singaporean citizenship without domesticating the New Jersey order,
id., slip op. at 21; (2) imposing monetary sanctions on defendant including the
payment of plaintiff's legal fees for failing to comply with various provisions of
prior orders, id., slip op. at 22; (3) upholding plaintiff's designation as the parent
of primary residence and restrictions on defendant traveling with Alexis outside
of Singapore, ibid.; and (4) finding plaintiff in substantial compliance with
requirements to provide defendant with Alexis's medical and school records, id.,
slip op. at 21-22.
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In this appeal, filed on July 30, 2020, while the prior appeal was pending,
defendant reiterates his objections to the June 4 and September 20, 2019 orders,
and challenges an additional enforcement order entered on June 19, 2020 .
Among other things, the June 19 order (1) authorized plaintiff to sign Singapore
citizenship and school registration forms for Alexis on defendant's behalf; (2)
entered judgment for the unpaid counsel fee award that was previously imposed;
(3) awarded counsel fees for filing the enforcement motion; (4) granted
continued shared access to Alexis's medical records; (5) denied sanctions on
plaintiff due to her substantial compliance with the requirements of prior orders;
(6) denied defendant's request to be listed as an emergency contact at Alexis's
school given the geographic distance; and (7) denied a change of custody on the
ground that there was no material change of circumstances.
Other than contesting the judge's decision awarding counsel fees for the
enforcement motion and authorizing Alexis's school registration on defendant's
behalf, there is nothing raised in the current appeal that was not fully adjudicated
in our prior decision. Therefore, we hold that our prior decision is the law of
the case and bars relitigation. See Lombardi v. Masso, 207 N.J. 517, 538-39
(2011) (explaining that the law-of-the-case doctrine "is a non-binding rule
intended to 'prevent relitigation of a previously resolved issue'" and is "triggered
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when one court is faced with a ruling on the merits by a different and co -equal
court on an identical issue." (quoting In re Estate of Stockdale, 196 N.J. 275,
311 (2008))); State v. K.P.S., 221 N.J. 266, 277 (2015) ("Both collateral estoppel
and law of the case are guided by the 'fundamental legal principle . . . that once
an issue has been fully and fairly litigated, it ordinarily is not subject to
relitigation between the [same parties] either in the same or in subsequent
litigation.'" (quoting Morris Cnty. Fair Hous. Council v. Boonton Twp., 209
N.J. Super. 393, 444 n.16 (Law Div.1985))). Consequently, we reject the
arguments previously adjudicated in our prior decision and affirm the June 19,
2020 order substantially for the reasons stated by Judge Kurt Kramer in his oral
opinion of the same date.
Succinctly, on April 23, 2020, plaintiff moved to enforce the June 4 and
September 20, 2019 orders. On May 5, 2020, defendant opposed the motion,
requested a stay of the orders, and cross-moved for various relief. Oral argument
was conducted on June 19, 2020, during which plaintiff's attorney explained to
the judge that because defendant did not seek a stay of the prior orders pending
appeal, plaintiff was moving to enforce certain provisions of the orders pursuant
to Rule 1:10-3. In her supporting certification, plaintiff outlined the ongoing
harms she suffered by virtue of defendant's failure to comply with the prior
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orders, particularly her inability to obtain Singaporean citizenship for Alexis
with its attendant benefits.
Thus, plaintiff sought an order requiring defendant to sign the consent
form for Alexis to obtain Singaporean citizenship, pay $10,000 in accrued
sanctions for failing to sign the consent form, pay $33772 in counsel fees plus
sanctions as previously awarded, and pay counsel fees incurred in filing the
current enforcement motion as permitted under the September 20, 2019
reconsideration order.3 Plaintiff also sought an order compelling defendant to
provide necessary documentation to enroll Alexis in public school in Singapore.
In response, defendant sought a stay of the prior orders and requested sanctions
against plaintiff based on the same claims he had been making throughout the
multi-year litigation.
In an oral opinion, Judge Kramer found no disputed material facts,
confirmed that defendant did not previously "move for a stay of any portion of
the . . . prior order[s]," and determined that "the elements necessary for a stay
[did] not exist" as to certain provisions. As a result, the judge granted in part,
2
We round all monetary amounts to the nearest dollar.
3
That order alerted defendant that an award of counsel fees would be
entertained if a further enforcement motion was needed to obtain defendant's
compliance with the prior orders.
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and denied in part, plaintiff's motion to enforce litigant's rights. Specifically,
"based on the pending appeal," the judge denied plaintiff's "request for the . . .
award of sanctions for [defendant's] failure to sign the [citizenship] consent
form" "without prejudice" to plaintiff seeking enforcement of the provision after
the adjudication of the appeal. However, the judge ordered that "[i]n the event
. . . defendant does not sign the [form] within [sixty] days"4 "of the date of th[e
current] order," then "plaintiff shall be authorized" "to sign any citizenship
forms" for Alexis "on behalf of . . . defendant." Likewise, the judge authorized
plaintiff "to sign the forms necessary" for Alexis to be enrolled in public school
on defendant's behalf after defendant represented to the court that he had signed
the necessary documents for Alexis's enrollment.
The judge also granted "plaintiff's request for enforcement of the attorney
fee award" previously entered and "reduced [the award] to a judgment" in the
amount of $3377 "[p]lus sanctions of [$2000] consistent with [the] prior order."
Additionally, after considering the certification of plaintiff's counsel and
applying the Rule 4:42-9 and 5:3-5(c) factors, 5 the judge granted an award of
4
The judge initially imposed a forty-five-day deadline for defendant's
compliance but extended the deadline to sixty days at defendant's request.
5
Under Rule 5:3-5(c),
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counsel fees in the amount of $1850 for the current application. The judge
explained that "this [was] an enforcement action" and "plaintiff has prevailed on
the majority of the material issues."
Turning to defendant's cross-motion, the judge denied "defendant's
request for sanctions," finding that defendant "failed to establish a material
breach" of the requirements imposed on plaintiff in prior orders. Further, the
judge denied defendant's request for a change of custody or a plenary hearing,
noting that "[i]ssues of custody have been substantially litigated in the past" and
"there has been no demonstrated material change of circumstances by . . .
defendant" "that would be a basis for the [c]ourt to consider a change of
custody."
In determining the amount of the fee award, the court
should consider, in addition to the information required
to be submitted pursuant to R. 4:42-9, the following
factors: (1) the financial circumstances of the parties;
(2) the ability of the parties to pay their own fees or to
contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties . . . ; (4) the extent of the fees
incurred by both parties; (5) any fees previously
awarded; (6) the amount of fees previously paid to
counsel by each party; (7) the results obtained; (8) the
degree to which fees were incurred to enforce existing
orders or to compel discovery; and (9) any other factor
bearing on the fairness of an award.
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Further, the judge directed both parties to "notify the other within [twenty-
four] hours of scheduling any medical appointment" and provide "a copy of all
medical records received" "within [twenty-four] hours after such appointment."
Additionally, defendant was granted access to "any medical records available
electronically" through Alexis's Singapore identification number, rather than
plaintiff's. Also, defendant was to be identified as Alexis's father on "school
records," "but shall not be identified as the emergency contact" because g iven
Alexis's "location . . . in Singapore" and defendant's location in the United
States, defendant was "not able to act in an emergency role if [plaintiff was] not
available."6 However, plaintiff was directed to "notify . . . defendant" "within
[twenty-four] hours of any school emergency." The judge entered a
memorializing order on June 19, 2020, and this appeal followed.
On appeal, defendant raises the following arguments for our
consideration:
I. PERMISSION SHOULD NOT HAVE BEEN GIVEN
FOR PLAINTIFF TO SIGN THE CONSENT TO
CITIZENSHIP FORM WITHOUT THE CONSENT
ORDER BEING DOMESTICATED IN SINGAPORE.
II. PLAINTIFF'S [CONTEMPT] OF COURT
SHOULD BE UPHELD AND SHE SHOULD HAVE
6
Plaintiff's mother and sister, with whom she and Alexis resided, were listed as
emergency contacts at Alexis's school.
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SANCTIONS HELD AGAINST HER UNTIL SHE
COMPLIES WITH CONSENT ORDER.
III. MATERIAL CHANGE OF CIRCUMSTANCES
WARRANT A PLENARY HEARING TO
DETERMINE A CHANGE IN CUSTODY.
IV. LEGAL FEES SHOULD NOT HAVE BEEN
AWARDED TO PLAINTIFF.
V. COURT ABUSED ITS POWER TO DENY
[DEFENDANT'S] RIGHTS AND ALLOW
[PLAINTIFF TO] SIGN SCHOOL FORMS
WITHOUT [DEFENDANT], WITHOUT ANY
EVIDENCE AND REMOVED [DEFENDANT'S]
EMERGENCY CONTACT ON [ALEXIS'S] SCHOOL
RECORDS AND REGISTRATION.
Preliminarily, we address the trial court's jurisdiction to adjudicate the
enforcement motion while an appeal was pending. Rule 2:9-1(a) provides in
pertinent part:
Except as otherwise provided by [Rules] 2:9-3 [(stay
pending review in criminal actions)], 2:9-4 (bail), 2:9-
5 (stay pending appeal [in civil actions]), 2:9-7 [(stay
of administrative proceedings)], 2:9-13(f) [(appeals
from orders granting pretrial detention)], and 3:21-
10(d) [(change of sentence during pendency of
appeal)], the supervision and control of the proceedings
on appeal or certification shall be in the appellate court
from the time the appeal is taken or the notice of
petition for certification filed. The trial court, however,
shall have continuing jurisdiction to enforce judgments
and orders pursuant to [Rule] 1:10 [(contempt of court
and enforcement of litigant's rights)] and as otherwise
provided.
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Rule 1:10-3 provides that "[n]otwithstanding that an act or omission may
also constitute a contempt of court, a litigant in any action may seek relief by
application in the action." Further, "[t]he court in its discretion may make an
allowance for counsel fees to be paid by any party to the action to a party
accorded relief under th[e] rule" and "[i]n family actions, the court may also
grant additional remedies as provided by [Rule] 5:3-7." R. 1:10-3.
The motion to enforce litigant's rights described in Rule 1:10-3 is
addressed to a court's "inherent right to invoke coercive measures designed to
compel a recalcitrant party to comply with a court order." S.S. v. E.S., 243 N.J.
Super. 1, 8 (App. Div. 1990). Thus, "[a] proceeding to enforce litigant's rights
'is essentially a civil proceeding to coerce the defendant into compliance with
the court's order for the benefit of the private litigant.'" Manalapan Realty, Ltd.
P'ship v. Twp. Comm., 140 N.J. 366, 392 (1995) (quoting Essex Cnty Welfare
Bd. v. Perkins, 133 N.J. Super. 189, 195 (App. Div. 1975)).
Under Rule 2:9-5(b),
[a] motion for a stay in a civil action . . . prior to the
date of the oral argument in the appellate court or of
submission to the appellate court for consideration
without argument shall be made first to the court which
entered the judgment or order. Thereafter the motion
shall be made to the appellate court.
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Applications for a stay pending appeal are governed by the familiar
standard outlined in Crowe v. De Gioia, 90 N.J. 126 (1982). Under that
standard, a party seeking a stay must demonstrate that (1) relief is needed "to
prevent irreparable harm"; (2) the applicant's claim rests on settled law and has
"a reasonable probability of ultimate success on the merits"; and (3) balancing
"the relative hardship to the parties" reveals that greater harm would occur if a
stay is not granted than if it were. Id. at 132-34. The moving party has the
burden to prove each of the Crowe factors by clear and convincing evidence,
Brown v. City of Paterson, 424 N.J. Super. 176, 183 (App.Div.2012) (citation
omitted), and the court's decision will not be disturbed on appeal so long as it
did not amount to an abuse of discretion. Crowe, 90 N.J. 133-35.
Here, the first appeal was submitted to the court on October 13, 2020, and
defendant requested a stay of the orders on appeal in his cross-motion filed on
May 5, 2020. We are satisfied there was no abuse of discretion by Judge Kramer
in denying the stay. Our affirmance of the orders on appeal and our Supreme
Court's denial of the petition for certification confirm that the issues raised by
defendant lacked merit. In the absence of a stay, the judge had continuing
jurisdiction to enforce the orders being appealed.
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Turning to the substantive arguments raised in this appeal, due to "the
family courts' special jurisdiction and expertise in family matters," the "scope
of appellate review of a trial court's fact-finding function is limited. The general
rule is that findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
13 (1998) (citing Rova Farms Resort, Inc. v. Inv's Ins. Co. of Am., 65 N.J. 474,
484 (1974)).
While we owe no special deference to the judge's legal conclusions,
Manalapan, 140 N.J. at 378, "'the factual findings and legal conclusions of the
trial judge'" should be left undisturbed unless we are "'convinced that they are
so manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice' or when we
determine the court has palpably abused its discretion." Parish v. Parish, 412
N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, 154 N.J. at 412). Thus,
we will only reverse the trial court's decision when it is necessary to "'ensure
that there is not a denial of justice' because the family court's 'conclusions are []
"clearly mistaken" or "wide of the mark."'" Id. at 48 (alteration in original)
(quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
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Likewise, counsel fee determinations rest within the trial judge's sound
discretion. Williams v. Williams, 59 N.J. 229, 233 (1971). We will disturb a
trial court's determination on counsel fees "only on the 'rarest occasion,' and then
only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super.
298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317
(1995)). An "abuse of discretion only arises on demonstration of 'manifest error
or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554, 572 (2005)), and occurs when the trial judge's decision is "made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184,
197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561,
571 (2002)).
Applying these principles, we are satisfied that Judge Kramer's decision
is amply supported by the record and legally sound. Defendant's arguments to
the contrary lack sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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