                                NOT FOR PUBLICATION WITHOUT THE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-3187-15T1

QUEEN LIZZY ONUKOGU,

          Plaintiff-Respondent,

v.

CHIDI M. ONUKOGU,

     Defendant-Appellant.
___________________________

                    Submitted October 9, 2018 – Decided October 30, 2018

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Hudson County,
                    Docket No. FM-09-0543-14.

                    Chidi M. Onukogu, appellant pro se.

                    Respondent has not filed a brief.

PER CURIAM

          In this post-judgment matrimonial matter, defendant (ex-husband) appeals

from the Family Part's March 3, 2016 order entered following an ability to
comply hearing, ordering him to list for sale property he purchased prior to the

marriage to assist in paying the arrears owed to plaintiff (ex-wife) for child

support and alimony. In light of the record and applicable law, we affirm.

      We glean the following facts from the record. The parties married in

Nigeria in 2000. After the marriage, defendant returned to the United States

where he had resided prior to the marriage and plaintiff later joined him. The

parties first resided together in a two-family house on Norwood Street in

Newark. The Norwood Street property was purchased by defendant prior to the

marriage, was titled solely in his name, and contained an apartment that was

rented to generate income. After approximately two years, the parties purchased

and moved to another two-family house on 12th Avenue in Newark, which

became the marital residence despite also being titled solely in defendant's

name. Two children were later born of the marriage, a boy in 2004, and a girl

in 2006.

      The parties separated in 2012, when defendant moved out of the marital

residence while plaintiff and the children remained. The parties divorced in

2014. In the dual judgment of divorce (DJOD) entered on December 16, 2014,

following the parties' divorce trial, Judge Maureen B. Mantineo awarded joint

legal custody of the children to the parties, but designated plaintiff the parent of


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                                         2
primary residence and ordered defendant to pay $137 per week in child support.

The judge also ordered defendant to pay alimony in the amount of $375 per week

for ten years, beginning December 19, 2014, and ordered the county probation

department to collect the spousal and child support payments. See R. 5:7-4(b).

Additionally, the judge awarded plaintiff the sum of $20,500 in equitable

distribution, payable at a rate of $100 per week, beginning December 19, 2014.

According to the judge, the award was intended to compensate plaintiff for ten

years of marital earnings that rightfully belonged to the parties' marital estate,

but defendant used to maintain the Norwood Street property, which had "equity

in the amount of $107,000" based on defendant's certification.

      In rendering her ruling on the equitable distribution award, Judge

Mantineo acknowledged that the Norwood Street property was purchased by

defendant prior to the marriage, "in his name alone." However, the judge

accepted plaintiff's testimony that she had initially "resided" there and

contributed to "the upkeep of the rental apartment [in the property]" by

"clean[ing] it when tenants vacated," preparing it "for rental," and "financially

contributing to the expenses when there were shortfalls in money." Further, the

judge considered defendant's testimony that "he allowed his father and brothers




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                                        3
to live in [the Norwood Street property] rent free" while he used money acquired

during the marriage "to sustain their living expenses."

      The judge continued that, while defendant consistently contributed to the

Norwood Street property, he "failed to keep the mortgage current on [the marital

residence], and the property [was] likely to be lost."1 The judge explained that

"utilizing money that should have been part of the marital estate to support an

asset titled solely in the defendant's name [gave] rise to an equitable interest by

plaintiff in the property."     The judge therefore concluded that although

defendant was permitted to retain the Norwood Street property as "pre-marital

property," plaintiff had "both sweat equity, as well as monetary equity in the

asset."

      After the trial, defendant traveled to Nigeria, purportedly on a disability

leave of absence from his job, and did not return to the United States until

approximately December 2015. Upon his return, defendant learned there was a

bench warrant for his arrest for non-payment of support obligations.            On


1
   Notably, in assessing credibility between the parties at the trial, the judge
found defendant "both evasive and blatantly untruthful when it came to his
finances." She explained that given the fact that defendant was "a financial
specialist working for fifteen plus years in that capacity," his "inability to
explain his own finances undercut the believability of his testimony," and led
the judge to conclude that his own "conduct led to the dissipation of [the marital]
asset[s]."
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                                        4
December 14, 2015, defendant surrendered himself and appeared before the

court at an ability to comply hearing. At the hearing, a $10,000 purge order was

issued for defendant's release from jail. At a review hearing conducted on

December 18, 2015, at defense counsel's request, the court reduced the release

amount to $2500, which was paid by defendant's family members, to allow

defendant to attend a scheduled hearing to determine whether defendant would

maintain his employment.        The December 18, 2015 order also required

defendant to attend another ability to comply hearing and pay an additional

$1000 by December 30, 2015, or a bench warrant for defendant's arrest would

be issued.   On December 31, 2015, another bench warrant was issued for

defendant's arrest after he failed to pay the $1000, but was recalled on January

7, 2016, when a family member made the payment.

      After probation filed a motion to enforce litigant's rights on behalf of

plaintiff, at an ability to comply hearing conducted on March 3, 2016, as an

"alternative[] to incarceration," Judge Mantineo ordered the sale of the Norwood

Street property and appointed a realtor to effectuate the sale. Initially, the judge

reviewed defendant's earnings and assets to discern his ability to pay. Although

defendant stated that his "net . . . W-2" earnings for the prior year were only

$40,000, the judge pointed out that defendant "only worked a portion of the


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                                         5
year" after returning to work from his "disability" leave, but previously had

"salary plus . . . rental income" from the Norwood Street property in "excess of

$90,000" annually. Nonetheless, the judge noted for the record that defendant's

most current weekly paycheck reflected a "net pay" of "$136," less deductions.

The judge also confirmed that defendant's previously filed bankruptcy petition

had been dismissed.

      However, noting that defendant's child and spousal support arrears totaled

$15,470.76, and that defendant had equity in the Norwood Street property, the

judge explained:

            [A]s long as there[] [is] an asset here, like any other
            assets, I[] [a]m going to liquidate it.

                  The only way I can liquidate that asset is to put it
            up for sale. Because in order for you to have an asset,
            and you can, and I wish you do, [plaintiff] has to be
            made whole. Can[not] be the other way around. . . .
            And again, the kids do[] [not] live in that asset. I do[]
            [not] have any of those competing things.

                  So, there is an asset . . . , and I recognize things
            have changed somewhat.

                   . . . [B]ut there was equity in the house that I
            found was there. And the asset equity should be
            utilized to bring the deficiency of $15,470 current.

                   I do[] [not] have any good faith basis to believe
            that this will be done voluntarily.


                                                                         A-3187-15T1
                                        6
                  ....

                    The only way that I can see that . . . [plaintiff] can
            . . . be made whole with respect to income sources is by
            the asset being pledged and being sold. And, that
            whatever her ability to get the money she[] [will] get
            her[] share, and then he[] [will] be able to get his share.
            And then the significant arrears [will not] be hanging
            over him nor will the equitable distribution of $20,000.

      When presented by counsel with alternative proposals to selling the

Norwood Street property, 2 including a lump-sum payment to be made by

defendant's relatives who had been residing in the property "rent free," the judge

agreed that if defendant "[came] up with $15,000[,] the house [did not] have to

be sold." However, the judge cautioned that "this can[] [not] be on [defendant's]

calendar anymore." According to the judge,

            my idea of a plan is that [plaintiff] does[] [not] have to
            wait every month when is the shoe dropping. She[]
            [has] lived without water, electricity. The kids have
            lived without . . . having tuition paid. And now . . . we
            all agree she[] [is] getting kicked out . . . .




2
  The judge rejected the proposal that defendant "deed[] half of the [property]"
to plaintiff, reasoning that plaintiff "need[ed] cash." Although the judge
acknowledged that she did not know if selling the Norwood Street property was
"going to give her cash either," the judge directed the attorneys to work with the
appointed realtor because "Newark [was] getting hot again."



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                                          7
Thus, the judge allowed defendant to make a lump sum payment of $15,000 in

two days to avoid selling the Norwood Street property. Otherwise, the judge

ordered defendant to contact the designated realtor by March 5, 2016, to list the

property for sale in order "to provide some stability for [the] children."3

Although the judge expressed regret for the ejection of defendant's relatives who

"lived there for years" without paying "any rent at the expense of [plaintiff,]"

the judge noted that it was "[defendant's] choice" that put them in that position.

On March 15, 2016, defendant filed a notice of appeal and this appeal followed.4



3
   In his unopposed merits brief, defendant contends that he made several
arguments against the sale, including that the sale would render him and his
children homeless. However, the transcript of the March 3, 2016 hearing is a
compressed transcript containing only excerpts of the full hearing and does not
include those purported arguments.
4
   We note that after the March 3, 2016 order was entered, defendant engaged in
extensive motion practice to decrease his child support and alimony obligations,
to change custody and visitation arrangements, to request Judge Mantineo's
recusal, and for reconsideration of the March 3, 2016 order. Defendant also
filed an order to show cause to stay the March 3, 2016 order to sell the Norwood
Street property, which was denied. While the other motions were still pending,
on May 6, 2016, the judge correctly determined that pursuant to Rule 2:9-1(a),
the filing of an appeal relieved the trial court of authority or jurisdiction to act
with the exception of the trial court's "continuing jurisdiction to enforce
judgments and orders pursuant to [Rule] 1:10 and as otherwise provided." As
defendant did not appeal the DJOD and the March 3, 2016 order is the only order
designated in his notice of appeal, it is the only order "subject to the appeal
process and [our] review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397
N.J. Super. 455, 458 (App. Div. 2008).
                                                                            A-3187-15T1
                                         8
      On appeal, defendant argues the judge abused her discretion by ordering

the sale of the Norwood Street property "without exhausting other available

options." Defendant argues further that the judge "erroneously decided that [he]

deliberately allowed [the marital residence] to fall into foreclosure, and

therefore sought to punish [him]." We disagree.

      The scope of our review of the Family Part's orders is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). We owe substantial deference to the Family

Part's findings of fact based on adequate, substantial, and credible evidence in

the record, understanding the court's special expertise in family matters. Id. at

411-13; MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). Although no

special deference is accorded to the judge's legal conclusions, Manalapan

Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995),

            we "should not disturb the factual findings and legal
            conclusions of the trial judge unless . . . 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) (first alteration in original) (quoting Cesare, 154
            N.J. at 412).]




                                                                         A-3187-15T1
                                        9
      Applying these principles, we discern no abuse of discretion and have no

cause to disturb the judge's decision at the March 3, 2016 ability to comply

hearing. "The issue to be decided at an ability to comply hearing closely

parallels determinations Family Part judges make on a daily basis concerning

the evaluation of financial information provided through documents and

testimony," in an "attempt[] to achieve a fair resolution of the economic issues

of parties going through the emotionally charged process of divorce." Schochet

v. Schochet, 435 N.J. Super. 542, 550-51 (App. Div. 2014). "[J]udges review

testimony, case information statements and other financial information, and

necessarily make assessments of the parties' needs, wants, and ability to fund

costs."   Id. at 551.   "In particular, Family Part judges are well versed in

reviewing the good faith of litigants who fail to meet their obligations in the full

spectrum of post-judgment litigation." Ibid.

      We have previously stated

             [t]he Rule 1:10-3 hearing is not a plenary hearing to
             decide the appropriate amount of support an obligor
             should pay. That amount has been determined, either
             by the court following a trial or post-judgment motion,
             or by the parties themselves. The hearing is also not a
             substitute for an appeal or a motion to modify the
             obligation based on changed circumstances. The
             hearing comes about because an obligor has failed to
             comply with an order. The objective of the hearing is


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                                        10
              simply to determine whether that failure was excusable
              or willful, i.e., the obligor was able to pay and did not.

              [Id. at 548 (emphasis omitted).]

        Once the court determines that "the parent was capable of providing the

required support, but willfully refused to do so," Pasqua v. Council, 186 N.J.

127, 141 n.2 (2006), the court may "coerce the defendant into compliance with

the court's order for the benefit of the private litigant." Id. at 140 (quoting Essex

Cty. Welfare Bd. v. Perkins, 133 N.J. Super. 189, 195 (App. Div. 1975)).

Pursuant to Rule 1:10-3, in addition to the ultimate sanction of incarceration,

"the court may also grant additional remedies as provided by [Rule 5:3-7(b),]"

including "fixing the amount of arrearages and entering a judgment upon which

interest accrues;" "requiring payment of arrearages on a periodic basis;"

"economic sanctions;" and "any other appropriate equitable remedy." R. 5:3-

7(b).

        "Relief under [Rule] 1:10-3, whether it be the imposition of incarceration

or a sanction, is not for the purpose of punishment, but as a coercive measure to

facilitate the enforcement of the court order." Ridley v. Dennison, 298 N.J.

Super. 373, 381 (App. Div. 1997). For example, in Milne v. Goldenberg, 428

N.J. Super. 184, 198-99 (App. Div. 2012), the former wife appealed an order

imposing community service hours upon her as a means of coercing her to

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                                         11
comply with past orders regarding the payment of a joint federal income tax

liability. The trial court observed that the former wife "had 'a significant amount

of money . . . [at] her disposal, while she was not complying with these court

orders'" and had "intentionally 'prioritize[d]' her funds and ignored the

obligation." Id. at 199 (alterations in original). Accordingly, the trial court

found her "non-compliance was deliberately designed to delay satisfaction of

the obligation," and concluded "[her] failure to pay was willful." Ibid. We

affirmed that aspect of the trial court's order. Id. at 209.

      Here, deferring to Judge Mantineo's factual findings regarding plaintiff's

ability to pay and his willful non-compliance, which are facts supported by the

evidence in the record, we conclude the judge's order to sell the Norwood Street

property, rather than incarceration, was a reasonable exercise of judicial

discretion. Accordingly, we will not disturb the order.

      Defendant also seeks recusal of the judge, arguing that Judge Mantineo

exhibited "prejudice against [him] and bias towards [plaintiff]." Rule 1:12-2

provides that "[a]ny party, on motion made to the judge before trial or argument

and stating the reasons therefor, may seek that judge's disqualification." The

motion must be made to the judge whose disqualification is sought. State v.

McCabe, 201 N.J. 34, 45 (2010). Here, defendant did not seek Judge Mantineo's


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                                        12
recusal in the proceeding underlying the order that is the subject of this appeal.

We "will decline to consider questions or issues not properly presented to the

trial court when an opportunity for such a presentation is available unless the

questions so raised on appeal go to the jurisdiction of the trial court or concern

matters of great public interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014)

(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Because

this issue is neither jurisdictional in nature nor does it substantially implicate

the public interest, we decline to consider it. We note only that from our review

of the record, Judge Mantineo's enforcement of the support orders was based on

the evidence in the record, not a bias against defendant. "Bias cannot be inferred

from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298,

318 (App. Div. 2008).

      Affirmed.




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                                       13
