Alina Myronova v. Surender Malhan
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Opinion
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2156-21 A-2787-21
ALINA MYRONOVA,
Plaintiff-Respondent,
v.
SURENDER MALHAN,
Defendant/Third-Party Plaintiff-Appellant,
VIKTORIA MYRONOVA,
Third-Party Defendant- Respondent.
SPACEAGE CONSULTING CORP.,
Plaintiff-Appellant,
Defendant-Respondent, and
VIKTORIYA MYRONOVA,
Defendant-Respondent.
Argued May 21, 2025 – Decided August 20, 2025
Before Judges Currier, Paganelli, and Torregrossa- O'Connor.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-0339-21.
Paul A. Clark argued the cause for appellants.
Timothy P. Malone argued the cause for respondent Alina Myronova (Pashman Stein Walder Hayden, PC, attorneys; Tracy Julian and Timothy P. Malone, on the brief).
PER CURIAM
These matters, heard back-to-back, arise out of a decade-long matrimonial
litigation culminating in over 100 days of trial. On February 25, 2022, Judge
Terry Paul Bottinelli issued a final judgment of divorce (FJOD) and
accompanying 338-page comprehensive opinion (Divorce Action). Defendant
Surender Malhan 1 appeals from the FJOD, challenging the determinations
1 We refer to Surender Malhan as defendant throughout this opinion. We refer to plaintiff Alina Myronova as plaintiff and the two collectively as the "parties." A-2156-21 2 regarding custody, child support, equitable distribution, and spousal support. He
also appeals from orders compelling him to pay counsel fees and sanctions, as
well as the entry of a "gag order" against him.
In the companion case, SpaceAge Consulting Corporation, a company
owned and operated by defendant, sued its former employees—plaintiff and her
mother, Viktoriya Myronova—alleging they improperly took cash and other
benefits from the company (SpaceAge Action). SpaceAge further alleged that
Viktoriya failed to return a security deposit which it paid to her as the landlord
of SpaceAge's office space. After plaintiff filed the divorce complaint,
SpaceAge instituted these actions which were both consolidated with the
matrimonial matter. Judge Bottinelli addressed and dismissed SpaceAge's
claims in his February 2022 decision and order.
After a careful review of defendant's and SpaceAges's contentions in light
of the record and applicable principles of law, we affirm substantially for the
reasons expressed by Judge Bottinelli as reflected in his exhaustive, well-
reasoned written opinion.
I.
The Divorce Action
A-2156-21 3 We present the following procedural history and trial testimony pertinent
to the issues on appeal.
Plaintiff was born in Ukraine in 1983 and earned undergraduate and
graduate degrees. Defendant was born in India in 1960 and earned a graduate
degree in computer science. He served in the Indian military for many years
before coming to the United States on a work visa in March 1995 and later
became a citizen in 2008. Plaintiff and Viktoriya hold green cards only.
Plaintiff obtained her green card in January 2011, a month before she filed for
divorce.
Since May 1996, defendant has owned and operated SpaceAge, a software
services firm. When this litigation began in 2011, SpaceAge had approximately
twenty employees and grossed approximately two million dollars in annual
sales. The 2019 corporate tax return for SpaceAge listed total income of
$441,782.
A. The Parties' Relationship and Marriage
The parties met in Ukraine in May 2003 while defendant was participating
in a "romance tour" to find a wife. They disagree as to the date of their marriage.
Plaintiff initially asserted they wed in September 2003 in Ukraine and thereafter
referred to themselves as husband and wife and filed joint tax returns. However,
A-2156-21 4 she has also stated the couple visited India in October 2004 and participated in
a "religious marriage ceremony performed by a Hindu cleric." The record
includes affidavits from defendant's family members confirming the parties
solemnized their marriage in India in October 2004, but both parties concede
these affidavits contain at least some false information and were obtained only
for immigration purposes.
Defendant alleged he asked plaintiff to be his "life-partner" in the summer
of 2003 and began referring to her as his wife in January 2004, although no
ceremony had yet taken place. He states the marriage occurred in March 2008
when the parties obtained a "certificate of remarriage" from the Jersey City
Clerk in conjunction with defendant's application for citizenship. This
certificate stated that the date of the original marriage was October 18, 2004 .
B. Plaintiff's and Viktoriya's Relocation to the United States
Plaintiff and Viktoriya came to the United States in the spring of 2004
when defendant arranged for them to obtain visas as employees of SpaceAge.
Plaintiff worked in sales and marketing and Viktoriya was employed in
administration and human resources.
When Viktoriya first came to the United States, defendant or SpaceAge
paid all of her expenses. In 2007, she purchased an apartment in a building
A-2156-21 5 adjacent to the couple's home using at least some money provided by plaintiff.
Viktoriya purchased a second unit in the building as an investment with financial
assistance from both parties.
C. The Parties' Life in the United States
The parties have two children, a son, E.M., 2 born in March 2006, and a
daughter, V.M., born in August 2009.
In 2007, the parties jointly purchased the marital residence, an apartment
in a large complex in Jersey City, which defendant had rented since 1996. In
2008, the parties purchased six additional condominium units in the same
building and operated them as rental properties. The total cost for the units was
approximately $1,650,000. The couple borrowed in excess of $700,000 from
banks, approximately $250,000 from the seller, and used the proceeds from a
refinance of the marital residence to fund the balance.
Until 2012, and at defendant's direction, plaintiff collected the rental
income and deposited it into her own account. She paid the seller's mortgage,
but not the bank loans, from that account. Defendant provided plaintiff with the
funds to pay the bank loans. At issue here, plaintiff acknowledges transferring
2 We use initials to protect the children's identities. See R. 1:38-3(f)(6). A-2156-21 6 approximately $291,000, including some of this rental income and her own
SpaceAge earnings, to Viktoriya over several years during the marriage.
D. SpaceAge's Office
In 2009, the parties purchased two additional units in the same building
for approximately $450,000 to serve as SpaceAge's office. The purchase was
made in Viktoriya's name, and plaintiff gave Viktoriya cash for the down
payment. SpaceAge then paid Viktoriya rent for the space. Defendant claims
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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-2156-21 A-2787-21
ALINA MYRONOVA,
Plaintiff-Respondent,
v.
SURENDER MALHAN,
Defendant/Third-Party Plaintiff-Appellant,
VIKTORIA MYRONOVA,
Third-Party Defendant- Respondent.
SPACEAGE CONSULTING CORP.,
Plaintiff-Appellant,
Defendant-Respondent, and
VIKTORIYA MYRONOVA,
Defendant-Respondent.
Argued May 21, 2025 – Decided August 20, 2025
Before Judges Currier, Paganelli, and Torregrossa- O'Connor.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-0339-21.
Paul A. Clark argued the cause for appellants.
Timothy P. Malone argued the cause for respondent Alina Myronova (Pashman Stein Walder Hayden, PC, attorneys; Tracy Julian and Timothy P. Malone, on the brief).
PER CURIAM
These matters, heard back-to-back, arise out of a decade-long matrimonial
litigation culminating in over 100 days of trial. On February 25, 2022, Judge
Terry Paul Bottinelli issued a final judgment of divorce (FJOD) and
accompanying 338-page comprehensive opinion (Divorce Action). Defendant
Surender Malhan 1 appeals from the FJOD, challenging the determinations
1 We refer to Surender Malhan as defendant throughout this opinion. We refer to plaintiff Alina Myronova as plaintiff and the two collectively as the "parties." A-2156-21 2 regarding custody, child support, equitable distribution, and spousal support. He
also appeals from orders compelling him to pay counsel fees and sanctions, as
well as the entry of a "gag order" against him.
In the companion case, SpaceAge Consulting Corporation, a company
owned and operated by defendant, sued its former employees—plaintiff and her
mother, Viktoriya Myronova—alleging they improperly took cash and other
benefits from the company (SpaceAge Action). SpaceAge further alleged that
Viktoriya failed to return a security deposit which it paid to her as the landlord
of SpaceAge's office space. After plaintiff filed the divorce complaint,
SpaceAge instituted these actions which were both consolidated with the
matrimonial matter. Judge Bottinelli addressed and dismissed SpaceAge's
claims in his February 2022 decision and order.
After a careful review of defendant's and SpaceAges's contentions in light
of the record and applicable principles of law, we affirm substantially for the
reasons expressed by Judge Bottinelli as reflected in his exhaustive, well-
reasoned written opinion.
I.
The Divorce Action
A-2156-21 3 We present the following procedural history and trial testimony pertinent
to the issues on appeal.
Plaintiff was born in Ukraine in 1983 and earned undergraduate and
graduate degrees. Defendant was born in India in 1960 and earned a graduate
degree in computer science. He served in the Indian military for many years
before coming to the United States on a work visa in March 1995 and later
became a citizen in 2008. Plaintiff and Viktoriya hold green cards only.
Plaintiff obtained her green card in January 2011, a month before she filed for
divorce.
Since May 1996, defendant has owned and operated SpaceAge, a software
services firm. When this litigation began in 2011, SpaceAge had approximately
twenty employees and grossed approximately two million dollars in annual
sales. The 2019 corporate tax return for SpaceAge listed total income of
$441,782.
A. The Parties' Relationship and Marriage
The parties met in Ukraine in May 2003 while defendant was participating
in a "romance tour" to find a wife. They disagree as to the date of their marriage.
Plaintiff initially asserted they wed in September 2003 in Ukraine and thereafter
referred to themselves as husband and wife and filed joint tax returns. However,
A-2156-21 4 she has also stated the couple visited India in October 2004 and participated in
a "religious marriage ceremony performed by a Hindu cleric." The record
includes affidavits from defendant's family members confirming the parties
solemnized their marriage in India in October 2004, but both parties concede
these affidavits contain at least some false information and were obtained only
for immigration purposes.
Defendant alleged he asked plaintiff to be his "life-partner" in the summer
of 2003 and began referring to her as his wife in January 2004, although no
ceremony had yet taken place. He states the marriage occurred in March 2008
when the parties obtained a "certificate of remarriage" from the Jersey City
Clerk in conjunction with defendant's application for citizenship. This
certificate stated that the date of the original marriage was October 18, 2004 .
B. Plaintiff's and Viktoriya's Relocation to the United States
Plaintiff and Viktoriya came to the United States in the spring of 2004
when defendant arranged for them to obtain visas as employees of SpaceAge.
Plaintiff worked in sales and marketing and Viktoriya was employed in
administration and human resources.
When Viktoriya first came to the United States, defendant or SpaceAge
paid all of her expenses. In 2007, she purchased an apartment in a building
A-2156-21 5 adjacent to the couple's home using at least some money provided by plaintiff.
Viktoriya purchased a second unit in the building as an investment with financial
assistance from both parties.
C. The Parties' Life in the United States
The parties have two children, a son, E.M., 2 born in March 2006, and a
daughter, V.M., born in August 2009.
In 2007, the parties jointly purchased the marital residence, an apartment
in a large complex in Jersey City, which defendant had rented since 1996. In
2008, the parties purchased six additional condominium units in the same
building and operated them as rental properties. The total cost for the units was
approximately $1,650,000. The couple borrowed in excess of $700,000 from
banks, approximately $250,000 from the seller, and used the proceeds from a
refinance of the marital residence to fund the balance.
Until 2012, and at defendant's direction, plaintiff collected the rental
income and deposited it into her own account. She paid the seller's mortgage,
but not the bank loans, from that account. Defendant provided plaintiff with the
funds to pay the bank loans. At issue here, plaintiff acknowledges transferring
2 We use initials to protect the children's identities. See R. 1:38-3(f)(6). A-2156-21 6 approximately $291,000, including some of this rental income and her own
SpaceAge earnings, to Viktoriya over several years during the marriage.
D. SpaceAge's Office
In 2009, the parties purchased two additional units in the same building
for approximately $450,000 to serve as SpaceAge's office. The purchase was
made in Viktoriya's name, and plaintiff gave Viktoriya cash for the down
payment. SpaceAge then paid Viktoriya rent for the space. Defendant claims
that SpaceAge gave Viktoriya $208,000 in four additional rent payments
between September 2009 and October 2010, with the intention that she apply
them toward the mortgage principal, but she failed to do so.
E. The Florida Timeshares
In December 2010, shortly before the divorce filing, the parties and
Viktoriya traveled to Florida for a vacation. During the trip, the parties jointly
purchased a timeshare for $27,900 including a mortgage of $25,110 and
purchased a second timeshare unit for Viktoriya for an unspecified amount with
a mortgage of $16,110. Defendant bought two additional studio units in his own
name for a total of $30,000, with a mortgage of $27,000. Shortly thereafter, in
early 2011, plaintiff charged the outstanding mortgage balances for an
A-2156-21 7 unspecified two of these four timeshares to the marital credit card and used
approximately $50,000 from the couple's joint tax refund to pay that expense.
F. Plaintiff's Spending Immediately Before the Divorce
In January 2011, plaintiff charged several thousand dollars on a marital
credit card for bulk quantities of food, detergent, clothing, and other items .
Plaintiff claimed the marriage was breaking down and she needed to prepare for
being on her own without any income. She also charged a retainer of $7,500 for
her attorney to the card.
G. The Divorce Filing and the Order to Show Cause
In February 2011, plaintiff filed a complaint for divorce in Hudson County
and an emergent order to show cause seeking physical custody of the children
with supervised visitation for defendant. She alleged the marriage broke down
when defendant showed signs of "fanaticism" stating he planned to run for
President of the United States. She stated he had a history of mental illness,
including a psychiatric hospitalization around 1990 which led to his military
discharge. Plaintiff alleged defendant frequently "screamed" at the children if
they did not obey him precisely. She also said defendant slept erratically and
would take the children for drives in the car overnight or force them to stay
awake with him. In January 2011, defendant terminated plaintiff and Viktoriya
A-2156-21 8 from their roles at SpaceAge because, among other reasons, he believed they
stole in excess of $50,000 from the petty cash supply.
During a February 2011 hearing, defendant acknowledged that he planned
to run for President of the United States or the Senate and repeatedly discussed
leading men into battle. The court granted plaintiff temporary physical custody
of the children and provided defendant with supervised parenting time. The
court permitted defendant to remain in the marital residence and barred plaintiff
from entering it. Plaintiff and the children moved into one of the rental units.
Defendant answered the complaint and filed a twelve-count counterclaim
and a third-party complaint against Viktoriya because of her involvement in the
parties' finances, broadly describing the situation as a "marriage scam" in which
plaintiff allegedly induced him to wed so he would bring her to the United States
and support her. The third-party complaint was consolidated with the Divorce
Action. Later, Viktoriya moved for summary judgment on the third-party
complaint, which the court granted, concluding these claims belonged to
SpaceAge. This order led to the filing of the SpaceAge Action.
1. Pertinent Orders During the Ongoing Litigation
a. In April 2011, the court awarded defendant unsupervised parenting
time for two hours per day. It ordered defendant to pay plaintiff $3,000 per
A-2156-21 9 month in spousal support and $3,000 per month in child support. The parties
and children were to undergo psychological evaluations. The court further
ordered defendant to pay $10,000 in fees to plaintiff's counsel as well as fees for
various expert costs.
In the next few months, defendant was awarded additional unsupervised
parenting time and telephone calls with the children. The court ordered that
E.M. begin therapy because defendant alleged that plaintiff was "brainwashing
and biasing" the children. Plaintiff was awarded counsel fees several times for
defendant's repeated motions to recuse the Family Part judge and for discovery
violations.
b. Plaintiff's Relocation to Live with a Boyfriend
In 2012, plaintiff moved to relocate with the children from Jersey City to
Pompton Plains where she had rented a house in her own name and planned to
live with her new boyfriend. The court denied the application, but the parties
thereafter entered into a consent order, agreeing to a 50/50 parenting time
arrangement, under which the children would live with defendant Mondays
through Thursdays for school, with extended weekends and additional summer
parenting time for plaintiff.
A-2156-21 10 Defendant's subsequent motion to reduce his child support obligation and
to terminate spousal support based on cohabitation was denied. The court
ordered defendant to collect the rent and pay the mortgages on the couples' rental
properties.
c. Defendant's Hiring of Counsel and the Reduction in Spousal Support
Defendant, who was self-represented to this point, retained counsel and
moved again to reduce or eliminate his spousal support obligation in light of
plaintiff's cohabitation. Defense counsel also operates as general counsel for
SpaceAge, his office is located in the SpaceAge offices, and he charges
defendant a flat fee of $500 or $1,000 per month to litigate this matter .
The court ordered that spousal support would be fixed at $1,000 per month
retroactive to July 1, 2012, when the cohabitation began. The spousal support
obligation was suspended entirely for ten months until March 2014, to account
for a retroactive credit.
d. The 2013 Pasternak Psychological Evaluations
Dr. Marcy Pasternak, Ph.D., issued a written report arising from her
psychological evaluations of the parties and the children on October 15, 2013.
She reported that defendant was cooperative but "grandiose and rambling in
nature," appearing preoccupied with inspirational leaders throughout history .
A-2156-21 11 She found that his behavior, including his desire to run for President and posting
of related YouTube videos demonstrated "his fixed sense of self." The expert
also noted defendant made numerous inappropriate comments to the children.
Although Dr. Pasternak concluded defendant had "compromised judgment," she
did not find he could not care for his children.
In discussing plaintiff, Dr. Pasternak observed plaintiff had difficulty
accurately perceiving events and was sometimes unable to anticipate the
consequences of her actions. The expert also found plaintiff placed her own
needs before those of the children, demonstrated by her cohabitation with her
new boyfriend.
Dr. Pasternak had significant concerns about the judgment and parenting
skills of both parties. Nonetheless, she concluded that both parents loved their
children and believed they had their best interest in mind, and that both children
were bonded to both parents. She concluded that neither parent was
significantly more equipped than the other to be considered the primary
residential parent. Dr. Pasternak recommended that the parties share joint legal
and physical custody of the children and complete individual therapy.
A-2156-21 12 e. Plaintiff's Relocation to Bayonne and Cohabitation with Rothstein
Plaintiff ended her relationship with her boyfriend and he moved out of
the Pompton Plains home by July 2013. Thereafter, plaintiff began a
relationship with Jeffrey Rothstein. After the relationship began, Rothstein
purchased a two-family home in Bayonne in the name of A&J Holdings.3
Plaintiff and Viktoriya moved into Rothstein's home by October 2013 and
custody remained unchanged. Plaintiff initially denied cohabitation with
Rothstein because they lived in separate units within the home.
f. The January 10, 2014 Hearing
Defendant moved to be designated as the parent of primary residence and
to reduce both spousal support and child support. He alleged an adjustment was
required because plaintiff had obtained new employment and was cohabitating,
and his SpaceAge income had declined. The court denied the motions as the
trial was imminent, and the issues would be addressed at trial.
H. The Transfer to Essex County
However, shortly before the trial date, the cases were transferred to Essex
County because defendant had sued the Family Part judge in federal court for
"deprivation of due process."
3 A&J stood for Alina and Jeff. A-2156-21 13 I. Expert Reports as to SpaceAge's Value
In preparation for trial, plaintiff retained Joseph Petrucelli, an accountant
at PP&D Accounting Services, to conduct a valuation of SpaceAge. In his
report, Petrucelli advised of possible "serious issues of illegality" in connection
with SpaceAge's tax returns. He reported an "overstatement of deductions" and
"[s]ubstantial amounts of personal expenditures deducted as business expenses."
He concluded that SpaceAge was worth $202,552 as of October 2004, $190,182
as of March 2008, and $691,207.83 as of February 2011. After Petrucelli
received additional information from defendant, he amended his 2011 valuation
of SpaceAge to $857,000. The court ordered the parties to share in the expert's
fees.
Defendant also retained an expert, Stephen J. Goldberg, managing partner
of Sun Business Valuations, to provide a valuation of SpaceAge. Goldberg
concluded that SpaceAge was worth $445,000 as of March 2005, $560,000 as
of March 2008, and $870,000 as of March 2011.
J. The Initial Gag Orders
Around this time, defendant posted information about the litigation on his
blog and YouTube. Among other posts, defendant wrote, "I got scammed by
my scam wife Alina Myronova and my scam mother-in-law Viktoriya
A-2156-21 14 Myronova." After the parties filed various motions regarding these posts, the
court ordered that the parties were "enjoined and restrained without prejudice
from speaking with, appearing for an interview, or otherwise discussing" this
litigation, any of the parties, the parties' marriage, their pending divorce, or the
parties' children with any "reporters, journalists, newscasters, or other
agents/employees of newspapers or other media outlets" because "it is not in the
best interest of the children to have the parties' divorce litigation discussed in a
public forum." The court stated it would reconsider this order if an expert opined
that such statements would not affect the children.
Defendant moved to stay the order pending appeal. The court denied the
application, finding the order was in the children's best interests because they
should be protected from public intrusion and it would be detrimental for them
to see negative things about either parent on social media. The court amended
its order on May 1, 2014, to include:
6. All parties are hereby enjoined and restrained without prejudice from speaking with, appearing for an interview, or otherwise discussing, the parties' marriage, their pending divorce, the within litigation, or the parties' children or making any derogatory or negative statements about the other parties to any reporters, journalists, newscasters, or other agents/employees of newspapers or other media outlets on the grounds that it is not in the best interest of the children to have the parties' divorce litigation discussed
A-2156-21 15 in a public forum or to have public disparaging statements made about one party by the other party.
7. Any portions of [d]efendant's blog that addresses issues pertaining to this divorce litigation, [p]laintiff, or [Viktoriya] shall be removed immediately. Defendant is prohibited without prejudice from publishing in the future anything to the blog pertaining to this divorce litigation or any negative or disparaging statements about plaintiff or [Viktoriya].
8. Both parties are hereby prohibited without prejudice from discussing or commenting about the within litigation or making any negative or disparaging statements about . . . plaintiff or [Viktoriya] on any form of social media including without limitation, Facebook, Twitter, blogs, Instagram, and Pinterest on the grounds that it is not in the best interest of the children to have the parties' divorce litigation discussed in a public forum or to have negative or disparaging statements made . . . by one party about the other party publicized or disseminated.
The court reiterated that these restraints could be eliminated if an expert
opined that such statements would not harm the children. Trial was scheduled
for September 2014.
Plaintiff amended her complaint for divorce to include claims that
defendant defamed her in his blog. Defendant answered and added multiple new
claims to his counterclaims and third-party complaint. The pleadings were
amended several more times prior to trial.
A-2156-21 16 1. The June 20, 2014 Hearing
After plaintiff moved to modify custody, defendant cross-moved to
recalculate child support and suspend spousal support. The court denied both
applications. The court also directed defendant to remove the previously-
ordered content from his blog, as he had refused to do so. Defendant moved
again to vacate the gag order, and the court denied the application. Both parties
advised they were not ready for trial and the court postponed the proceeding
until March 2015.
2. The Federal Court's Decision on the Gag Orders
Defendant and a journalist brought suit in federal court challenging the
gag orders as violative of the First Amendment. The federal district court found
the orders were unconstitutional because the judge had not made any specific
findings regarding the need for a gag order. 4 Thereafter, the Family Part judge
scheduled a plenary hearing to "weigh the competing interests of the best
interests of the parties' children and defendant's First Amendment rights."
However, before this hearing could occur, defendant sued the Family Part judge
in federal court and moved for her recusal. A second Essex County judge took
over the case.
4 Nichols v. Sivilli, No. 2:14-3821, 2014 WL 7332020 (D.N.J. Dec. 19, 2014). A-2156-21 17 K. The 2015 Allegations Against Rothstein
In 2015, defendant filed an order to show cause alleging that Rothstein
had physically abused the children. A simultaneous investigation by the
Division of Child Protection and Permanency (the Division) resulted in
psychological evaluations of both parties, the children, and Rothstein. After
reviewing the ensuing expert reports, the court entered an order permitting
Rothstein to be present during plaintiff's parenting time and ordered the Division
to arrange for therapy for the children.
Shortly thereafter, defendant filed another order to show cause, alleging
Rothstein had sexually abused V.M. Defendant also contacted the Division with
these allegations. The court initially ordered that Rothstein have no contact with
the children.
V.M., who was then five years old, confirmed the allegations but the
Division noted that she seemed "coached" because she repeated certain
sentences "robotically." E.M., who was then nine years old, told the Division
he had not observed any inappropriate touching but only mere tickling. Plaintiff
and Rothstein denied the allegations and Rothstein completed a polygraph test
successfully. The Division found that defendant was "coaching his children to
make allegations" and the allegations of abuse were not established.
A-2156-21 18 The newly assigned Family Part judge received a typewritten letter,
purportedly from E.M. and V.M., stating that plaintiff put them "through hell,"
they wanted her to "leave [them] alone," and that plaintiff and Viktoriya had
"done something very horrible to [their] dad." The children later admitted that
defendant wrote the letter.
L. The June 18, 2015 Hearing and Gag Order
Meanwhile, the plenary hearing regarding the gag orders took place. The
court found the orders were invalid and overbroad, except as pertaining to
confidential Division material and custody issues. The court vacated the prior
gag orders and issued a new one:
All parties are hereby restrained and enjoined from speaking with, appearing for an interview, or otherwise discussing any custody information to any reporters, journalists, newscasters or other news media employees or from posting any blogs or information not previously posted or disseminated relating to the children or any custody issue in this case pending a further hearing.
The court also ordered an expert psychiatrist to determine if parental
alienation occurred, if the children's interactions with the parents were contrary
to their best interests and whether publicity would affect the children. However,
when defendant informed the expert he intended to record the sessions, the
A-2156-21 19 expert declined to proceed. Two other experts were appointed but defendant
failed to pay the fees.
M. The January 5, 2016 Motion Hearing
Defendant again moved to terminate or reduce spousal support, which
remained at $1,000 per month, citing plaintiff's cohabitation, an increase in her
income, and the length of the marriage. The court denied the motion and advised
the issue would be considered at trial. Although the child support obligation
remained fixed at $3,000 per month, defendant stopped paying it.
After hearing a subsequent motion to reduce spousal support, the court
reduced the amount by $286 per month because plaintiff had access to health
insurance from her employer. The court noted that plaintiff "was not
forthcoming" about her access to health insurance.
N. The 2016 Temporary Restraining Orders
In June 2016, plaintiff obtained a temporary restraining order (TRO)
against defendant, alleging stalking, cyber harassment through various online
posts, and that defendant interfered with her employment. She subsequently
amended the TRO to include harassment.
A-2156-21 20 After hearings that spanned over nine days, the court dismissed the TRO,
finding plaintiff had not proven the predicate acts. The court found plaintiff was
not credible because she was evasive and lacked candor.
O. The Trespass Action
Plaintiff reported her allegations to the prosecutor's office regarding
defendant's actions of coming to her residence and hiring a private investigator
to follow her. In February 2017, defendant was indicted for stalking and a bench
warrant was issued for his arrest.
Defendant was arrested and briefly incarcerated while visiting West Point
with the children in April 2017. After plaintiff picked up the children in West
Point, she went with them to defendant's apartment, the former marital
residence, and used a hidden spare key to enter and permit the children to
retrieve their backpacks. Defendant filed a complaint for trespass and
conversion against plaintiff. The court consolidated the trespass action with this
Divorce Action.
Defendant moved for summary judgment on his trespass claim. He
certified that plaintiff was restrained from entering his apartment under a 2011
order entered early in the Divorce Action. Plaintiff responded that she used the
key to open the door and then the children went into the apartment to get their
A-2156-21 21 backpacks while she waited in the entryway. The court denied the motion,
finding defendant's claim was more appropriate as a motion to enforce litigant's
rights in light of the co-ownership of the apartment and the 2011 order.
P. Ongoing Litigation
In February 2017, the court learned that previously designated custody
experts, including Dr. Pasternak, declined to further participate in this matter
because defendant insisted on recording his sessions. Therefore, the court
ordered the parties to designate new custody experts and for the children to
receive therapy. Defendant had refused to facilitate the previously ordered
therapy sessions for the children.
The motion practice continued. At one point in 2017, the court found
defendant in violation of litigants' rights for failing to comply with parenting
time orders and sanctioned him with counsel fees to be paid to plaintiff's counsel
in the amount of $9,231.12.
The court also denied yet another application by defendant to adjust child
support, in which he alleged an increase in plaintiff's income. The court
conducted a thorough analysis, noting there had been a "precipitous" decline in
defendant's income without explanation, but found there was not enough
information to modify child support. The court ordered defendant to pay the
A-2156-21 22 spousal and child support arrears via wage garnishment, in addition to his usual
child support obligation, because he had stopped making any payments.
Defendant filed several actions in federal court regarding the propriety of the
wage garnishment. Those actions were dismissed.
In addition, the court ordered that defendant's obligation to pay spousal
support going forward was terminated because the support period now exceeded
the length of the marriage. The effective date of the termination would be
established at trial.
1. The September 2017 Suspension of Defendant's Custody and Parenting Time
In late summer 2017, the children's therapist contacted the Division to
report the children alleged defendant had threatened suicide in front of them and
made other inappropriate statements. The Division investigated and initially
found that defendant regularly kept the children home from school and he
required them to share a bed, though E.M. was already ten years old .
Specifically, the Division's report stated that defendant kept the children home
from school on Thursdays to prevent plaintiff from picking them up from school.
After a hearing, the court awarded plaintiff "temporary sole legal and
physical custody of the . . . children" until further order and suspended
defendant's parenting time pending the Division's final report. The court advised
A-2156-21 23 that if the parties could agree on a supervisor, defendant could continue
supervised parenting time.5 The court also ordered defendant to undergo a
psychological evaluation.
2. The November 2017 Psychological Evaluation and Temporary Unsupervised Parenting Time
Reports were submitted that did not find defendant had abused or
neglected the children. 6 Therefore, the court lifted the restraints on defendant's
parenting time, gradually returning to equal, unsupervised parenting time. The
court ordered the children to complete psychological evaluations and defendant
to participate in individual therapy.
3. 2017 Psychological Evaluations of the Children
Dr. Gerard Figurelli, Ph.D., completed psychological evaluations of the
children in December 2017. In her interview, V.M. reported that defendant was
"very angry" and made her clean his house, which she reported to be
"disgusting" and "smelly" with "rats and mice." She told the expert she did not
5 The parties did eventually select a supervisor. 6 The psychologist later withdrew his report after learning defendant had recorded the session without permission.
A-2156-21 24 want to sleep there. Dr. Figurelli found that V.M. was afraid of defendant and
did not trust him.
E.M. reported that defendant would "scream" at him and "lay in bed and
say we were killing him, or grab a knife or a weight and say he wanted to kill
himself." E.M. said that defendant once locked them out of his apartment. Dr.
Figurelli concluded that both children were significantly impacted by their
exposure to defendant's behaviors. He endorsed ongoing supervised visitation,
but cautioned that if defendant's problematic behavior continued, visits should
be suspended.
4. The December 2017 Return to Supervised Parenting Time
Following the reinstatement of defendant's parenting time, there were
difficulties between the parties while picking up or dropping off the children .
Defendant attempted to pick up the children at school, but administrators refused
to release them to him, resulting in him instituting suit against the school. On
plaintiff's days to pick up the children, defendant came to the school and
recorded the encounters. Defendant told the children he intended to "bring
everybody to justice" through this litigation.
Around this time, the children became less affectionate toward defendant
and refused to visit him at his home. After a hearing, the court eliminated
A-2156-21 25 defendant's overnight parenting time and ordered other parenting time be
supervised in a December 22, 2017 order.
5. The December 27, 2017 Supervised Visit
The children participated in a supervised visit with defendant on
December 27, during which a dispute developed over their planned activity.
Defendant began recording the visit against the chaperone's wishes, telling the
chaperone that child abuse was not bad because it "sets discipline." While riding
in defendant's car, the chaperone observed he was driving over the speed limit
at approximately 50-55 miles per hour in a residential neighborhood, and he
ignored red lights and stop signs. The chaperone terminated the visit due to
safety concerns and because defendant was "highly emotional." The chaperone
reported the children were "fearful at times" and defendant's behavior was
"cause for concern" and demonstrated a "dangerous physical and emotional
environment."
The chaperone also testified during a hearing that on a subsequent visit
defendant directed a SpaceAge employee to follow the chaperone and children
around to "get evidence." The supervised visits remained in effect. Trial was
scheduled to begin in July 2018.
A-2156-21 26 6. The 2018 Motion to Enforce Litigant's Rights and the UTMA Accounts
Plaintiff moved to enforce litigant's rights, alleging defendant opened
accounts for the children under the Uniform Transfers to Minors Act (UTMA),
N.J.S.A. 46:38A-1 to -57 in December 2016 and deposited rental income in
excess of $120,000 into the accounts. She stated he then used the funds to pay
his own credit card bills or deposited them into his personal accounts, possibly
to shield the funds from levy.
In response, defendant stated he mistakenly opened the accounts and
subsequently closed them. He alleged that he accounted for any transfers to
these accounts. Defendant provided a summary of the transactions showing the
deposit of monthly rental income checks, his SpaceAge salary, and SpaceAge's
office rental payments from December 2016 through August 2017 into the
UTMA accounts and nonspecific withdrawals of nearly all those funds for
"[m]ortgage and [m]aintenance [p]ayments" and "[r]efund to [defendant]" for
"[e]mployee [p]ayroll."
The court ordered defendant to provide an accounting of the UTMA
accounts, and that any credits would be determined at trial. The court also found
defendant was in violation of litigants' rights for failing to pay spousal and child
support and ordered that he pay the associated counsel fees.
A-2156-21 27 7. Ongoing Litigation
The court also appointed a reunification therapist because the children
continued to refuse to attend visitation with defendant. However, the therapist
soon reported that defense counsel "interfered with her scheduling[] [and] sent
her inappropriate documentation," and the expert refused to have any further
involvement with the case.
Defendant filed another order to show cause seeking unsupervised
parenting time and authority to sell the couple's timeshares. The court declined
to modify the custody arrangement but ordered the sale of the timeshares and
directed that the proceeds be deposited into a litigation fund. It further ordered
the parties to sell some of the rental apartments to pay expert fees. In addition,
the court appointed a guardian ad litem (GAL) for the children, to assist the
court in its "aim to facilitate the resumption of [defendant's] unsupervised
parenting time." The GAL soon reported that she had no concerns about
defendant's supervised parenting time but noted the children did not want to visit
his home or office.
8. Reunification Therapy
In April 2018, the court appointed Dr. Thomas Golden, Ph.D., to serve as
the reunification therapist, and the children participated weekly for two months .
A-2156-21 28 Around this time, defendant filed suit against the Essex County judge and moved
for his recusal, resulting in the case being transferred to a third Essex County
judge.
9. The August 2018 Reunification Plan and Unsupervised Parenting Time
In August 2018, the court lifted the supervision requirement for
defendant's parenting time and adopted a recommendation from the reunification
therapists that defendant have the children on Wednesday evenings and Sunday
daytime for two months, followed by overnight parenting time every other
weekend. On one of the unsupervised visits, plaintiff arrived late, the children
were reluctant to participate, and defendant called the police, reporting the
children had been kidnapped.
As a result, the court ordered that defendant's parenting time continue
without supervision, with the chaperone facilitating the exchanges. The court
ordered both parents to complete individual therapy, but defendant refused to
participate.
The court found defendant in violation of litigant's rights for failing to pay
his ongoing child support obligation, the previously ordered arrears and the
related $9,231.12 counsel fees. It further found a violation of litigant's rights
for defendant's failure to sell the apartments and Florida timeshares. The court
A-2156-21 29 ordered defendant to obtain a line of credit on the marital residence to establish
a fund to pay expert costs. Plaintiff had procured a $200,000 loan with a
litigation-funding organization, secured by the proceeds she anticipated
receiving in this matter, to pay existing legal bills.
The children continued to be uncooperative and refused to participate in
the unsupervised visits with defendant. The court again ordered the parties to
participate in individual therapy and directed defendant to participate in
therapeutic parenting time as well as separate parenting time, with the chaperone
handling the exchanges.
Shortly thereafter, defendant filed suit against plaintiff and the children's
therapist alleging they interfered with his custody of the children. 7 The therapist
withdrew from this case. The chaperone passed away in November 2018.8 The
court arranged for defendant and the children to have visitation at the courthouse
which continued through February or March 2019.
7 We affirmed the dismissal of the complaint on direct appeal. Malhan v. Myronova, No. A-5047-18 (App. Div. Jan. 28, 2021). 8 Defense counsel refused to believe the chaperone was actually dead and demanded a copy of her death certificate, which was ultimately provided confirming her death. A-2156-21 30 10. The Sale of the Apartments
In the course of obtaining the court-ordered line of credit on the marital
residence, defendant corresponded with a mortgage lender and sent a number of
erratic emails stating, "I don't want this loan" and "keep this absolutely
confidential since I fear retaliation from" the Essex County judge. As a result,
the lender declined to issue the loan. The court found defendant in violation of
litigant's rights for interfering with the application process and ordered he pay
the counsel fees associated with plaintiff's application for litigation funds.
Prior to trial, the parties sold four of the rental units and the sale proceeds
were used for litigation expenses and towards the child support arrears. Some
of the monies remained in escrow with plaintiff's attorney. The couple still
owned two units at the time of trial, as well as the marital residence. The
allocation of the funds in the litigation fund is not specifically challenged on
appeal.
11. The March 2019 Reunification Plan
The court appointed a new reunification therapist, a therapist for the
children, and one of defendant's employees as the parenting facilitator to assist
the parties in exchanging the children.
A-2156-21 31 The reunification therapist withdrew immediately after meeting defendant
and the court scheduled additional supervised visits at the courthouse. The
newly appointed social worker also withdrew after speaking to defendant to
begin reunification therapy. The social worker recommended defendant not
have any further visitation.
In May 2019, the court granted defendant's application to retain Les Linet,
M.D., as a new expert on custody and parenting time. The court ruled that any
custody and parenting reports prepared by the prior expert—Dr. Lidia Abrams,
Ph.D.—were barred, although Dr. Abrams could present expert opinions on
matters other than custody and parenting time, such as parental alienation.
12. Defendant's Online Activity and the May 31, 2019 Order
The record includes a series of emails between the parties from 2019 in
which defendant tried to schedule parenting time and inquired about E.M.'s high
school application process. Relevant here, defendant's emails referred to the
"Child Predatory Family Courts" and likened plaintiff to "Hitler, Stalin, [the
Essex County judge], etc." The record also includes screenshots of defendant's
social media posts from this time. The lengthy posts referred to the Essex
County judges, as well as the deceased chaperone and the children's prior
therapist as "child predators" and compared them to "Hitler, Stalin, Saddam,
A-2156-21 32 Bashar al-Assad, Kim Jong-Un, etc." The posts referred to Rothstein as
"psychotic" and similarly complained of plaintiff's attorneys.
Plaintiff moved for sanctions for violating the gag order and defendant
moved to vacate the gag order, for the Essex County judge's recusal, and to
address the custody dispute. During oral argument on the motions, defense
counsel referred to the Essex County judge as a "child predator."
In a lengthy written statement of reasons and accompanying order, the
court denied defendant's applications and held that trial would proceed promptly
in July 2019, beginning with the custody issue. The court also found defendant
in violation of the gag order and found the order remained necessary for the
children's best interests because they could see defendant's social media posts.
The court denied a subsequent identical application.
13. Summer 2019 Custody and Visitation
Both parties submitted expert custody reports in June 2019. During this
time, defendant and the children continued supervised visitation at the
courthouse. However, beginning in July 2019, the children refused to enter the
visitation room with defendant, so some visits occurred in the waiting area.
During one visit, the children refused to acknowledge defendant at all. Plaintiff
permitted E.M. to miss several of these visits to attend a high school preparation
A-2156-21 33 course. The weekly courthouse visits continued until January 2020, when they
were suspended due to the children's lack of cooperation.
Q. The Trial in Essex County
The trial began on July 11, 2019. The court denied defendant's application
to present the SpaceAge and trespass actions before a jury. When the court
denied yet another motion by defendant for sole legal and physical custody of
the children, defendant moved again for the judge's recusal, which the judge
denied. As the trial proceeded, ongoing events unfolded during trial that are
relevant to the issues on appeal.
1. Ongoing Litigation during Trial
By December 2019, the children had enrolled in therapy and defendant
again sought to resume traditional visitation. However, after defendant
contacted the children's therapist, the program cancelled the therapy. Plaintiff
testified that defendant "showed up at [the therapist's office] in his military
uniform asking to meet with them and get" the children's medical records.
Thereafter, defendant called the office "nonstop . . . call after call" and brought
his attorney to their office.
A-2156-21 34 2. The January 27, 2020 Order
During trial, the parties filed a number of motions relating to the gag
orders because defendant continued his erratic social media posts. During
argument on one of the motions, plaintiff's counsel played a video posted to
Facebook in which defendant stated, "Judge . . . [9] give my children freedom.
Set my children free or give me death." When arguing with the court about a
ruling and order on January 16, 2020, defense counsel insinuated the judge must
have been bribed.
In additional posts, defendant stated the children had been "kidnapped"
and "psychologically murdered" by the court and custody professionals.
Defendant also stated online: "I fear Judge . . . can easily hire someone to
assassinate me. From what I have seen, I think he is the head of a huge child
predator Mafia gang." Another post by defendant stated: "Someday I know this
insanity will end. One day all EVIL does end! One day we will be in our grave!"
The court issued a written opinion and order on January 27, 2020, finding
defendant in violation of the gag order and sanctioning him $1,000. The court
ordered defendant to complete a psychological evaluation and requested
9 Defendant used the judge's full name in the videos and posts. A-2156-21 35 plaintiff's counsel to re-enroll the children in therapy. Defendant refused to
attend psychological evaluations, prompting further court orders.
3. The School Contact Ban
Around this time, E.M. began applying to private high schools, and
plaintiff moved to bar defendant from contacting any of the schools to which
E.M. applied. She alleged that defendant's involvement might jeopardize the
application process because he had sued E.M.'s previous school. The court
entered an order barring defendant from contacting any high schools regarding
E.M.'s applications until receipt of the psychological evaluation.
The matter was delayed during the start of the COVID-19 pandemic and
few proceedings occurred. Defendant had no contact with the children from
January 2020 through December 2020.
R. The Transfer to Bergen County
In July 2020, defendant sued the Essex County trial judge in federal court.
Despite the Attorney General's acceptance of service on the judge's behalf,
defense counsel went to the judge's home with a process server to personally
serve the complaint on the judge approximately one week after the murder of
Federal Judge Esther Salas's son at her home. As a result, the cases were
transferred to Bergen County. At the time, the Essex County judge had
A-2156-21 36 considered hundreds of motions and orders to show cause applications and
issued orders on each and had presided over twenty-seven days of trial.
On December 14, 2020, Judge Bottinelli wrote to the parties advising trial
would begin in Bergen County on February 1, 2021 and take place four days a
week. The judge granted defendant's request that the trial begin anew. Plaintiff
moved in the Supreme Court seeking emergent relief from Judge Bottinelli's
decision to start the trial from the beginning. After extensive review of the
history of the protracted litigation, including the multiple recusal motions, the
Supreme Court held that the trial would resume before Judge Bottinelli using
the transcripts and exhibits from the previous days of trial in Essex County.
Relevant here, the Court's April 6, 2021 order provided:
The trial court's order directing that the trial commence anew is reversed, and the matter shall proceed in accordance with this order.
1. This matter has been reassigned multiple times to different judges after defendant initiated several lawsuits against the judges then presiding over the case. The most recent reassignment took place after substantial proceedings in this family dissolution dispute, namely, testimony taken across twenty-seven partial days of trial.
2. In light of that history, consistent with Rule 1:12- 3(b), and in furtherance of the interests of justice, the following procedural terms shall govern future proceedings. The terms are meant to efficiently bring
A-2156-21 37 the matter to closure for the benefit of the parties and children involved.
a. The newly reassigned trial court judge shall proceed to the fullest extent possible on the basis of the transcripts, exhibits, and other evidence or stipulations.
b. The trial court shall review the record developed to date to gain familiarity with the proceedings, testimony, and other evidence. See R. 1:12- 3(b).
c. Following that review, if the trial court concludes that it cannot fairly discharge its judicial duties solely on the record developed as to any particular aspect(s) of the matter, the trial court, pursuant to Rule 1:12-3(c), may supplement the record by recalling any witness, or make such other disposition as the circumstances warrant, including the calling of additional witnesses. In that event, the trial court shall narrowly define the scope of the record to be redeveloped or supplemented with additional witness testimony.
d. The court shall ensure that the record is not duplicated beyond what is strictly necessary to fairly discharge its judicial duties in the interest of justice and with consideration for the financial impact on the parties of replicating any portion(s) of this trial record.
3. The trial court retains the discretion to consider applications for attorney's fees, including pendente lite applications. Such applications may seek fees based on an evaluation of prospective services likely to be performed to bring this matter to a final disposition and
A-2156-21 38 may call for consideration of the respective financial circumstances of the parties. See R. 5:3-5(c). We also remind court and counsel alike that the trial court is in the unique position to ensure that the extended proceedings that have already occurred, plus additional proceedings necessary to bring this protracted proceeding to closure, do not require a party to bear financially unconscionable fees and costs. The trial court also may, on good cause shown, direct the parties to liquidate or otherwise make assets available to the extent the court deems necessary to permit either party to fund the litigation. Ibid.
4. The Court notes that this matter has been assigned to a fifth judge. The voluminous record before the Court, as well as the parties' submissions keyed to this issue, support the conclusion that the prior judges recused themselves in this matter based in part, if not exclusively, on defense counsel's course of conduct, which included the filing of six federal lawsuits against the judges presiding in this matter. Going forward, the filing of any new lawsuit or claim shall not constitute the basis for automatic disqualification or recusal. The Code of Judicial Conduct, Rules of Court, and other applicable authority shall continue to govern any challenge to a judge's participation in this matter, and participation will not be terminated unless prohibited by that authority.
5. Finally, the trial court shall enforce all operative orders governing the conduct of the parties and counsel appearing in this matter. The trial court shall retain the discretion to enter future orders restricting the conduct of the parties and their counsel, and to sanction counsel for violations of such orders and other willful conduct obstructing the adjudication of the proceedings or violative of the decorum and civility expected of licensed officers of the court in and out of the judicial
A-2156-21 39 forum. To date, defense counsel's conduct has included describing the presiding judge as a "child predator" in court, and driving to the presiding judge's home with a process server roughly one week after a tragic shooting at the home of a federal judge. In short, aggressive, hostile conduct need not be tolerated. Purported violations of the court's orders, and all other proceedings for sanctions, shall be considered under the authority of Rule 1:10-2; that applies to conduct occurring in court or outside of the courtroom.
Trial testimony began before Judge Bottinelli in May 2021 and continued
through December 2021.
1. The Skype Call with Defendant's Father
In April 2021, defendant filed an order to show cause to facilitate a Skype
call between the children and his father, who had been released from his life
prison sentence in India due to illness. Plaintiff had no objection to the call.
Despite the court's earlier reunification plans, and the stated purpose of the
motion, defense counsel inserted language into the proposed order that provided
defendant "a substantial amount of meaningful parenting time" and "granted
[defendant] temporary sole, legal, and physical custody of the parties' two minor
children until further order of the [c]ourt."
Judge Bottinelli granted the Skype call but found defendant in violation
of litigant's rights for making the same request for parenting time that had been
denied multiple times. The judge ordered defendant to pay plaintiff's counsel
A-2156-21 40 the costs of defending this motion in the amount of $4,597.50. The judge also
sanctioned defense counsel $500 for his failure to comply with Rule 1:6-2(c)
requiring a conference with opposing counsel, noting that the Supreme Court's
order had "expressed concern of the aggressive, hostile conduct by [d]efendant's
counsel" and "instructed that it is proper to sanction [c]ounsel." The judge found
that defense counsel had "inserted language into the proposed order . . . to, in
effect, get around prior orders," and described counsel's conduct as
"outrageous."
2. The Scripts
After hearing allegations during trial that defendant required the children
to use scripts when speaking with plaintiff and the Division, Judge Bottinelli
requested defendant to provide copies of any scripts, as they were not produced
during discovery. Defendant submitted a seventy-page document including
various scripts he required the children to use in phone calls and emails from
May 2015 through January 2017, when E.M. and V.M. were approximately nine
and six years old, respectively.
One such email that E.M. was required to send read, in part:
Mommy you have put me, my sister and my dad through hell. Please leave us alone. You do mean things to people and then you act as if you are a saint.
A-2156-21 41 For over four years I have seen that you have been lying, stealing and manipulating.
A script stated:
Mommy, when we are out in the sun, can you get us sunhats, you wear very good sun hats. Daddy takes very good care of us, why you cant [sic] take good care of us. Don't you love us? Do you really love us?
Another script stated:
My dad got you from Ukraine, my dad got your mother from Ukraine, my dad got you green card, my dad got your mom green card, my dad gave you a job in his business, my dad gave your mom a job in his business, my dad gave you high salary, my dad gave your mom high salary, and now you file a restraining order against him? Mommy are you a normal person?
3. Plaintiff's Case at Trial
Plaintiff testified consistently with the documentation in the record as
discussed above. As to the date of the marriage, she testified that the parties had
a spiritual ceremony on September 21, 2003, followed by a religious ceremony
in India in October 2004, and a "remarriage ceremony" in Jersey City in 2008.
Plaintiff described the custody history of this matter including difficulties
exchanging the children because defendant would "make a scene" and give a
"speech of how evil [she was] and [she was] a little scammer." She testified that
she encouraged the children to participate in defendant's parenting time but they
A-2156-21 42 were reluctant to do so. She said she did not force the children to visit with
defendant but she did not object to them seeing him.
She testified that both E.M. and V.M. did well in school and E.M. had
perfect attendance. She stated that both children earned scholarships to attend
private schools. Plaintiff testified that defendant refused to take the children for
therapy, contrary to various court orders and he did not understand the children's
needs.
When asked about the gag orders, plaintiff testified that defendant
repeatedly violated the orders with his online posts, several of which were
admitted into evidence. Plaintiff read a post in which defendant wrote:
Judge . . . , I did not come into this world to surrender our precious freedom to you. Please let me rephrase what men such as Mahatma Gandhi, Dr. Martin Luther King, Nelson Mandela said[:] "You may kill me, you may take possession of my dead body, but you will never take possession of my precious freedom. I will never allow you to take possession of my freedom."
Judge . . ., you can kill me. You can take possession of my dead body, but you will not take possession of my freedom or my children's freedom. Give me liberty or give me death.
In another post, defendant wrote:
This ransom demand, in Family Court Judge . . . calls it settlement offer, welcome to America, Judge . . . is
A-2156-21 43 leading the way, showing the world how we do insanely evil crimes the American way.
Think if you are standing in front of Stalin, Hitler, Saddam, North Korean dictator, how terrified we will feel. One wrong smile, one wrong word, one wrong step and we will be sent to the gas chamber, to the concentration camp, or be executed by a firing squad.
In a video entered into evidence and addressed to the Essex County judge,
defendant stated, "[d]o you get paid enough as a judge? I promise you whatever
money you make as a child predator, I'll pay you. Just don't kidnap children
anymore, please. Please, for heaven's sake, for God's sake."
Regarding financial matters, plaintiff described her life in Ukraine before
the marriage and testified that she and Viktoriya lived comfortably. She stated
they brought about $50,000 in cash and $29,000 on "debit cards" when they
came to the United States. She detailed various deposits of some of their funds
into United States banks and the purchase of several certificates of deposit.
Plaintiff described the marital finances as intermingled with those of both
SpaceAge and Viktoriya. She testified that she and Viktoriya followed
defendant's instructions about what to pay and from which account.
Plaintiff admitted transferring various sums of money to Viktoriya
throughout the marriage but denied concealing these payments. She transferred
A-2156-21 44 a total of roughly $291,000 to Viktoriya between 2006 and 2010 as part of "a
plan of how to address the finances" with defendant's consent. She clarified the
$291,000 estimate included proceeds from her own certificates of deposits and
payments toward Viktoriya's mortgage pursuant to defendant's instructions, as
well as money toward the down payments on Viktoriya's two apartments.
Plaintiff said defendant knew about the transfers as they were completed at his
direction. She also stated she charged items for Viktoriya to the parties' credit
card with defendant's consent.
Plaintiff testified regarding her February 2011 Case Information
Statement (CIS), where she reported $64,000 in annual earned income for
herself and $276,000 for defendant, both from SpaceAge. She acknowledged it
included some expenses that she did not actually incur, such as daycare costs
and a car payment.
Plaintiff acknowledged that the mortgage payment decreased from
approximately $5,000 per month to approximately $3,000 per month in 2012,
but defendant continued to pay her $5,000. She confirmed she repaid the amount
owed to defendant according to the court's order.
Plaintiff testified that her annual salary at the time of trial was
approximately $92,000, although she earned $104,000 in 2019, working as a
A-2156-21 45 recruiter. She provides the children with medical, dental, and vision insurance.
Plaintiff stated the children's personal expenses have increased as they've gotten
older and began taking musical theater lessons, taekwondo, art classes, and
swimming. She said her current expenses for her and the children totaled
$12,140 per month, or approximately $145,000 per year. Plaintiff estimated her
counsel had billed her approximately $2 million in counsel fees to that time.
Plaintiff described her job at SpaceAge during the marriage, which paid
approximately $32,000 per year. She testified that she and her mother
contributed to growing the business. Plaintiff stated that neither she nor
Viktoriya had control of the "books" and that defendant authorized all checks
and payments.
Plaintiff testified that the office space for SpaceAge was purchased in
Viktoriya's name because the parties could not qualify for any additional
mortgages and because SpaceAge was involved in litigation. She said she and
defendant provided Viktoriya with at least $48,000 toward the down payment.
After the purchase, SpaceAge paid monthly rent to Viktoriya by check,
though not in regular installments, and there was no lease. She said defendant
bought the units from Viktoriya in May 2011 and paid approximately $90,000
"to cover the taxes expense" and also assumed the existing mortgages.
A-2156-21 46 Regarding petty cash, plaintiff testified that defendant frequently wrote
checks to her, Viktoriya, or other SpaceAge employees and instructed them to
cash the checks for "petty cash," often in $3,000 or $5,000 increments, for his
own use. She testified that defendant managed this cash, which was kept in his
briefcase. She denied stealing petty cash from SpaceAge.
As to cohabitation, plaintiff confirmed she shared the rent with a
boyfriend for approximately a year between June or July 2012 and June 2013.
She testified that she began a relationship with Rothstein in spring 2013 and
signed a lease in October 2013, to rent the lower unit in his two-family home.
Plaintiff said she sometimes slept upstairs with Rothstein in 2013, but denie d
being in a marriage-like relationship with him at that time. She said they shared
a credit card beginning in January 2014 and he added her to his AAA
membership. Eventually plaintiff moved into the upstairs unit with Rothstein
and she stopped paying rent in late 2017 or early 2018.
Plaintiff stipulated to cohabiting with Rothstein beginning in August
2016. At the time of trial, plaintiff, Rothstein, and the children lived in the upper
unit and Viktoriya and her husband lived in the lower unit but did not pay rent.
Paul Dasher, Ph.D., a psychologist, testified for plaintiff as an expert on
custody and parenting time. He performed psychological and bonding
A-2156-21 47 evaluations of E.M. and V.M. in October 2018, and separately interviewed the
parties, Viktoriya, and Rothstein.
Dr. Dasher testified that E.M. reported that defendant coached him on how
to speak to Division investigators and caseworkers. Dr. Dasher stated the
children felt defendant was "too self[-]absorbed" and did not "connect[]" with
them. The expert said the litigation was distressing, confusing, and disruptive
to E.M.
Dr. Dasher testified that V.M. reported that defendant often held a knife
to his own heart and said he would kill himself. V.M. said there were rats, mice,
ants, and roaches in defendant's home, and that he exposed his naked body in
the children's presence. Dr. Dasher said the children wished to remain living
with plaintiff.
The expert said the children engaged appropriately with plaintiff and
appeared comfortable. When he observed them with defendant, Dr. Dasher said
they were "not fearful" and laughed with him occasionally. However, defendant
struggled to connect with the children emotionally.
Dr. Dasher testified that plaintiff was intelligent, supportive of the
children, and understood their needs. He stated the children's home life with
A-2156-21 48 plaintiff and Rothstein was happy and normal. He did not find there was any
parental alienation of defendant by plaintiff.
As to defendant, Dr. Dasher testified he had underlying psychiatric
problems involving delusional thinking and grandiosity and also demonstrated
hypervigilance which bordered on paranoia. He concluded defendant had
narcissistic personality traits, bipolar disorder, and misconstrued the boundaries
of appropriate behavior. Dr. Dasher determined defendant struggled to validate
the children's feelings, which would adversely affect the possibility of
reunification. He further informed that defendant's lack of insight and poor
judgment were major contributors to his difficulties with the children.
Dr. Dasher also testified about the impact of publicity on the children,
opining defendant's social media posts could have an adverse impact on them.
He stated the children would be embarrassed if their personal information were
discovered by their peers. He emphasized that the internet postings were "a
major contribution to their estrangement."
Dr. Dasher recommended that plaintiff maintain primary residential
custody of the children and be granted legal custody due to defendant's
psychiatric illness, his negativity toward plaintiff, and his difficulties with co -
A-2156-21 49 parenting. He said defendant should meet with a psychiatrist and psychologist
and that such treatment should be a condition of any supervised visitation.
Two of the reunification therapists appointed by the court also testified,
describing the events that caused them to withdraw from the appointment.
Petrucelli testified for plaintiff as an expert in forensic accounting and
business valuations regarding the value of SpaceAge. He stated he observed
"significant IRS problems" with defendant's business practices. He provided the
court with his valuations of SpaceAge: $202,552 as of October 2004; $190,182
as of March 2008, and the amended valuation of $857,000 as of February 2011.
4. Defendant's Case at Trial
Defendant testified that the marriage began in 2008 with the "remarriage
ceremony" in Jersey City although he admitted the couple participated in a
September 2003 ceremony in Ukraine and thereafter began referring to each
other as husband and wife. He denied there was a wedding ceremony in India
in October 2004. Defendant said he filed joint tax returns with plaintiff in 2004
indicating they were married, but he was lying about the marriage at that time.
Regarding custody, defendant testified he had a very good relationship
with his children until 2017. He denied ever yelling at the children, telling them
about the court proceedings, or threatening suicide. Defendant conceded there
A-2156-21 50 were mice, but not rats, in his home. He did acknowledge the children were
habitually late or absent from school while in his care. He also admitted
preparing scripts for the children to question plaintiff about her conduct
throughout this matter.
Defendant testified that he did not need therapy and he did not want the
children to have therapy. He acknowledged he did not complete the last court -
ordered psychological evaluation, stating the doctor would not meet with him.
Defendant stated his financial affairs and those of SpaceAge were "closely
tied up." He testified that SpaceAge had revenue of approximately $1.9 million
in both 2010 and 2011, $1.79 million in 2012, $1.25 million in 2013, an
unspecified amount in 2014, $1.04 million in 2015, and $837,875 in 2016. He
said that he, through SpaceAge, paid $12,000 per month to rent the offices from
Viktoriya during her ownership of the space.
Defendant acknowledged that he decided how much to pay himself from
SpaceAge depending on the business revenues. He testified his gross income
from SpaceAge was $276,000 in 2010, $275,000 in 2011, $487,530 in 2012,
$440,000 in 2013, $265,000 in 2014, $205,000 in 2015, $225,000 in 2016,
$61,000 in 2017, $9,999.99 in 2018, $13,333 in 2019, and $18,333.33 in 2020.
A-2156-21 51 He acknowledged that he also earned rental income paid by SpaceAge arising
from its tenancy in the two units.
Defendant testified that SpaceAge's revenues began to decline around
2014. He said the company had four employees at the time of trial but had once
employed twenty-five people. He testified that SpaceAge earned less than
$100,000 annually at the time of trial and that he earned approximately $50,000
per year from the company.
Regarding plaintiff's and Viktoriya's role at SpaceAge, defendant
admitted that he managed the financial affairs and signed any checks that
Viktoriya prepared. He said he was unaware how much plaintiff and Viktoriya
took as petty cash from SpaceAge.
In discussing marital spending, defendant testified that the family lived a
frugal lifestyle during the marriage and kept spending to a "bare minimum" with
the goal of saving for the future. Defendant estimated the couple's expenses in
2010, noting SpaceAge paid a lot of them.
Defendant testified that the couple purchased the marital residence for
$360,000 in cash in 2007, using some of his savings and some money earned
since 2004 and renovated the apartment at plaintiff's insistence for
approximately $250,000.
A-2156-21 52 Defendant also testified regarding plaintiff's spending on the marital credit
card, beginning in December 2010, when plaintiff spent approximately $13,000
that month. He stated plaintiff spent a similar amount on the marital credit card
in January 2011, and $31,445 in February 2011, including $7,500 to her first
attorney and $1,600 at Restaurant Depot. In March 2011, plaintiff spent
$68,951, which included the $52,000 payoff for two of the timeshares and
$7,718 in April 2011, when his spousal support obligation began.
Defendant described his personal expenses since the divorce filing, stating
he purchased many toys for the children in 2011 to deal with the "trauma" of the
divorce, including a piano, guitar, stethoscopes, and yoga mats. He testified that
he paid for V.M. to attend nursery school and dance lessons when in his care
beginning in 2012.
Defendant admitted opening the UTMA accounts for the children in 2016
and initially testified that he did so "to motivate them" because he was teaching
them programming. However, he then conceded opening the accounts "to avoid
a levy" on his own funds by the probation department. He admitted making
significant deposits into these accounts and then withdrawing the money,
including withdrawals of approximately $120,000 and $44,000. He stat ed he
A-2156-21 53 never used any of the money deposited into these accounts for the children's
benefit.
The GAL testified consistently with the documentation in the record,
stating this was an "awful, awful case" and there was "no good answer" as to
custody. She stated that "each of these parents are so bad" and "it's too late" for
these children. The GAL testified to the emotional and physical abuse that both
parents "visited upon these children by using [them] as pawns in their fight" and
that the children should be placed with the "least worst" parent.
Dr. Linet testified for defendant as an expert in the field of child and
adolescent psychiatry. He described his involvement in this matter dating back
to 2018, when he met with the parties and the children, and also listened to
recordings of the children's conversations with defendant. He testified that he
performed a psychiatric assessment of defendant and found no mental disorder.
Dr. Linet testified that the children demonstrated "splitting," a concept
where they found plaintiff to be entirely good and defendant to be entirely bad.
He concluded that an "external influence" resulted in the children feeling this
way about defendant. Dr. Linet testified that the children experienced what he
considered to be delusions about rats in defendant's home and that their grades
would suffer when living with him. He stated the children learned apparent
A-2156-21 54 falsehoods about defendant and believed them, including that he might commit
suicide.
Dr. Linet described plaintiff as conducting a "campaign of denigration"
against defendant and concluded this was a severe case of parental alienation.
On cross-examination, the expert admitted that he also observed some parental
alienation of plaintiff by defendant.
Dr. Linet recommended that the children be separated from plaintiff for
ninety days, with no contact at all, and temporarily transferred to defendant's
custody in order to ameliorate the parental alienation. He testified this would
allow the children to "work through the distortions in their mind[s]." Thereafter,
custody could be shared and the children should be involved in therapy.
Dr. Abrams testified for defendant. She was the initial custody expert
retained by defendant but was later replaced by Dr. Linet. She admitted that
while she had submitted preliminary reports, she had not prepared a final report
in this matter because she could not make a final recommendation about custody.
In keeping with the May 23, 2019 Essex County order, Judge Bottinelli
ruled that Dr. Abrams could not render any opinions as to custody or parenting
time, but she could provide expert opinion regarding her psychological
evaluation of defendant and the possibility of parental alienation. The court was
A-2156-21 55 astonished and dismayed to hear Dr. Abrams state that defendant's counsel
invited her to listen in to the court's confidential virtual interview with the
children, contrary to the court's instructions. Dr. Abrams said she logged into
the interview but when she could not hear everything, she left the Zoom call.
Dr. Abrams testified that she completed a psychological evaluation of
defendant in 2011. She diagnosed him with an "adjustment disorder not
otherwise specified" but found no psychosis, delusions, or hallucinations. Dr.
Abrams evaluated defendant again in 2017 and concluded that he was not
suicidal and had no diagnosable psychological condition, although she found he
had poor social skills and "mild Asperger's" syndrome. The expert testified that
defendant was "not able to connect with people properly" but was "very high
functioning" and a "very smart guy."
Dr. Abrams stated she observed a dramatic shift in the children's attitudes
toward defendant during the litigation. She concluded there was parental
alienation of defendant by plaintiff that was responsible for the children's
rejection of their father.
Dr. Golden, who served briefly as a reunification therapist in 2018, opined
that the children had experienced an "artificial separation" from defendant, who
posed no harm to them. He stated he and the GAL jointly concluded that
A-2156-21 56 defendant's visits with the children should not be supervised. He testified that
reunification therapy was unnecessary because "more time of [only] father and
children" would allow for normal content in visitation.
Luis Caceres, defendant's former employee, testified that he observed the
children at the office prior to 2017, and they showed affection toward defendant
most of the time. He said he never observed defendant display anger around the
children. Another former employee testified similarly.
Vinh Dang, the children's karate instructor in 2017, testified that the
children were respectful to defendant and were not afraid of him. He never
heard defendant talking about plaintiff in front of the children. Dhuliben Patel,
defendant's housekeeper, testified she kept defendant's home clean and cooked
for him. She stated defendant took very good care of the children when they
lived with him.
Defendant also presented testimony from several friends and neighbors to
corroborate that he had a good relationship with the children before 2017.
Several relatives testified that the parties did not participate in a wedding
ceremony in India in October 2004.
Judge Bottinelli conducted in camera interviews of the children on August
19, 2021. V.M., who was then twelve years old, stated that when she lived with
A-2156-21 57 defendant, he did not permit her to have hobbies and only allowed her to read
biographies or learn JavaScript. She said defendant got mad when she played
computer games or read anything but biographies and yelled at her regularly.
She reported that when defendant was mad at her, he would take a knife and
hold it to his chest, lock himself in his room, or pretend to be dead. V.M. stated
defendant once smashed E.M.'s iPad. He did not allow her to have friends at the
residence.
V.M. acknowledged that her feelings for defendant changed around 2017
because she got older. She stated she was uncomfortable with defendant's
frequent videotaping of their interactions and he made E.M. feel badly about
gaining weight. She told the court that for her to have a relationship with
defendant, he would "have to change so drastically" and be "willing to learn and
grow."
When asked about her mother, V.M. said plaintiff was respectful and
listened to the children. She stated plaintiff required her to join the calls with
defendant but could not force her to speak to him. She spoke positively about
Rothstein and said he was "fun to be around" and never hurt her.
E.M., who was then fifteen years old, told the court that his academics and
school attendance improved when he began living with plaintiff full -time. He
A-2156-21 58 stated defendant was "very egotistical" and "always thinks he's right." He
reported that defendant was unwilling to compromise and too focused on
himself. He stated that when living together, defendant did not allow him to
spend time with other children and gave them only boiled vegetables for dinner.
E.M. stated it was "horrible" to live with defendant and he was "simply
surviving" defendant's "fits of anger." He reported that when angry, defendant
repeatedly held a knife to his own chest and said "just kill me now." E.M. said
there were mice in defendant's apartment and defendant wrote phone numbers
and quotes in chalk on the walls of the home.
E.M. told the judge that defendant gave him scripts of what to say when
speaking with plaintiff. He also stated that defendant gave him a list of questions
and answers before meeting with one of the psychologists. E.M. reported that
to have a relationship with his father, defendant would have to "come to the
realization that he's not always right."
E.M. stated that plaintiff sacrificed a lot for the children. He told the court
he wished to remain living with plaintiff, and not see defendant unless defendant
took steps to change.
A-2156-21 59 5. The Fee Application
Following trial, plaintiff's counsel provided a certification of services in
support of her fee application, seeking $1,980,303.20 in counsel fees for more
than 4,500 hours of work from January 2017 through the end of trial. Counsel
attached the retainer agreement and supporting invoices. Defendant did not
submit any certifications or other written documentation regarding his demand
for counsel fees, though at trial he requested at least $15,000 in counsel fees
from Viktoriya and a refund of certain fees previously awarded to plaintiff.
S. Judge Bottinelli's Opinion
As stated, Judge Bottinelli entered an FJOD and comprehensive written
opinion on February 25, 2022. We summarize the judge's conclusions here and
discuss them more fully as necessary to address defendant's contentions before
this court.
Judge Bottinelli awarded full custody of the children to plaintiff but
permitted defendant to move for parenting time after completing therapy. As to
equitable distribution, the judge awarded plaintiff $130,888, or 20% of the
growth in the value of SpaceAge from 2004 to 2011, and directed the sale of all
the remaining apartment units with the allocation of the proceeds as discussed
A-2156-21 60 below. The judge awarded plaintiff the one-bedroom timeshare purchased
jointly, and defendant the two studio units he had purchased.
As to spousal support, the judge found defendant owed plaintiff, after
certain credits, $252,054. The judge terminated defendant's spousal support
obligation as of August 1, 2016.
Regarding child support, the judge awarded plaintiff $675 per week going
forward and found that defendant owed arrears of $113,988. He also directed
that $224,985 be paid from the litigation fund escrow to plaintiff to establish
college savings plans to compensate the children for the funds defendant
withdrew from their UTMA accounts.
The judge sanctioned defendant $35,000 for violation of various orders,
failing to attend psychological evaluations, and for having Dr. Abrams covertly
listen-in on the children's in camera interviews. The judge awarded plaintiff
$1,980,303.20 in counsel fees and directed that $252,054 of that be entered as
spousal support arrears, and $1,728,249.20 be entered as child support arrears.
The judge dismissed defendant's trespass action, as well as his remaining
claims against plaintiff and Viktoriya including those for dissipation, fraud,
theft, and recoupment of health insurance proceeds. He also expressly dismissed
A-2156-21 61 all claims by SpaceAge against plaintiff and Viktoriya and denied defendant's
motion to vacate the gag orders.
II.
The Appeal
We turn to defendant's specific contentions on appeal, reiterating our
affirmance of Judge Bottinelli's meticulous opinion and reasoning, which
narrows the degree to which we must address each issue.
A. Custody Orders
Defendant argues that the multiple judges handling the litigation erred in
their pendente lite orders and that Judge Bottinelli erred in his final custody
ruling.
A parent's right to enjoy a relationship with his or her child is
constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346
(1999). Parental rights, though fundamentally important, are not absolute. Id.
at 347. "In custody cases, it is well settled that the court's primary consideration
is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105
(App. Div. 2007).
Appellate courts owe substantial deference to the Family Part's findings
of fact because of that court's special expertise in family matters. Cesare v.
A-2156-21 62 Cesare, 154 N.J. 394, 411-12 (1998). In reviewing a ruling by a Family Part
judge, "we defer to factual findings 'supported by adequate, substantial, credible
evidence' in the record." Landers v. Landers, 444 N.J. Super. 315, 319 (App.
Div. 2016) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)). Deference is
particularly warranted "when the evidence is largely testimonial and involves
questions of credibility." In re J.W.D., 149 N.J. 108, 117 (1997). We will
reverse only if the trial court's factual findings are so "manifestly unsupported
by or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Rova Farms Resort, Inc. v. Invs. Ins. Co.
of Am., 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).
We also "defer to the credibility determinations made by the trial court
because the trial judge 'hears the case, sees and observes the witnesses, and hears
them testify,' affording it 'a better perspective than a reviewing court in
evaluating the veracity of a witness.'" Gnall, 222 N.J. at 428 (quoting Cesare,
154 N.J. at 412). But "[a]ll 'legal conclusions, and the application of those
A-2156-21 63 conclusions to the facts, are subject to our plenary review.'" Slutsky v Slutsky,
451 N.J. Super. 332, 344-45 (App. Div. 2017) (quoting Reese v. Weis, 430 N.J.
Super. 552, 568 (App. Div. 2013)).
1. Pendente Lite Orders
Defendant argues the court erred when it suspended his physical custody
without a plenary hearing in 2011, and his legal and physical custody without a
plenary hearing in 2017 and 2018. As a threshold matter, any pendente lite
custody rulings here are moot because a final custody determination has been
made. See Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App.
Div. 2006) (An issue is moot when the decision sought "can have no practical
effect on the existing controversy.").
Notwithstanding, our careful review reflects the court acted within its
afforded discretion and relied upon credible evidence in its decisions to
temporarily suspend defendant's custody and parenting time in the cited
pendente lite orders. Although a plenary hearing is encouraged as part of a
significant and disputed custody change, K.A.F. v. D.L.M., 437 N.J. Super. 123,
138 (App. Div. 2014), the suspensions here were emergent, intended to be
temporary, and followed by intensive efforts toward reunification which were
unsuccessful due to the described circumstances of this case.
A-2156-21 64 As to the 2011 suspension, the court clearly acted to protect the children
from a credible concern in light of defendant's erratic behavior and then, after
finding no risk of harm, worked diligently to afford defendant additional
parenting time. Further, defendant's subsequent consent to the 50/50 custody
arrangement in 2012 undermines his assertion of error on this point.
Similarly, as to the September 2017 suspension of defendant's legal and
physical custody, the court again acted on an emergent basis to protect the
children from a threat of harm alleged by an appointed professional. Thereafter,
upon receipt of defendant's psychological evaluation, the court swiftly ordered
the gradual return to shared physical custody. During that process, the
therapist's report and chaperone's testimony demonstrated that the children were
at risk of harm in defendant's custody, which supported the court's February
2018 decision to only allow defendant supervised visitation. Thereafter, the
court lifted the supervision requirement and the only limitation on defendant's
parenting time was the children's refusal to spend time with him.
Further, although the court declined to schedule a plenary hearing after
the 2017 and 2018 suspensions, it agreed to consider the custody issues at the
then-pending trials, which were repeatedly delayed because of the dilatory
actions of defendant and his counsel. In the interim, the court expressly
A-2156-21 65 provided for several "reunification plans," which were thwarted by defendant's
litigiousness after numerous professionals withdrew from their appointments.
Even through the time of trial, and during the COVID-19 pandemic, the court
worked to facilitate phone calls and courthouse visits for defendant with the
children despite the children's unwillingness to participate.
2. Final Custody Ruling
Defendant contends Judge Bottinelli erred in awarding full legal and
physical custody of the children to plaintiff. He does not cite to a specific error
in the judge's factual findings.
N.J.S.A. 9:2-4(c) provides factors which a court must consider in making
an award of custody. Judge Bottinelli considered each factor and referenced
"the pertinent statutory criteria with some specificity," as required under
Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (quoting Terry v. Terry, 270 N.J.
Super. 105, 119 (App. Div. 1994)).
As to the parents' ability to agree, communicate and cooperate, the judge
found: this was a high-conflict case and defendant continued to "portray himself
as the victim" rather than address his own shortcomings; defendant coached the
children to make allegations and respond to the Division; defendant failed to
comply with court orders that he and the children complete therapy; defendant
A-2156-21 66 would benefit from therapy, and his behavior was "consistent with actions taken
by people with Asperger's Syndrome" as well as narcissism and "signs of
psychopathology which place him on the autism spectrum" as diagnosed by Drs.
Abrams and Dasher.
Regarding the parents' willingness to accept custody and any history of
unwillingness to allow parenting time, the judge found: both parents sought
custody; plaintiff failed to take affirmative steps to support defendant's
parenting time; and defendant acted in a manner which affected his ability and
opportunity to have a relationship with the children.
As to the interaction and relationship of the children with parents and
siblings, the judge first stated this factor was discussed throughout his analysis.
He found the children had a close relationship with each other. The judge noted
that defendant presented videos to demonstrate his own relationship with the
children, but concluded that these videos were likely a part of defendant's
"litigation tactics."
Regarding the history of domestic violence, the judge recited the 2016
TRO, as well as the trespass action. The judge went through the events leading
up to defendant's filing the trespass action and found defendant had not
substantiated the claim as he failed to present any evidence of damages. The
A-2156-21 67 judge stated: "By advancing such a claim, . . . defendant . . . act[ed] in bad faith
and . . . making th[at] argument only ma[de] him look petty." He found
defendant displayed "shameful actions" throughout the litigation.
The judge noted the 2016 TRO alleging the predicate act of stalking was
dismissed but also found defendant testified during this trial that he had hired a
private investigator to secretly follow and surveil plaintiff.
As to the safety of the children and the safety of either parent, the judge
found that neither the children nor the parents were at risk of physical abuse, but
that defendant subjected the children to "psychological maltreatment."
Regarding the preference of the children, the judge described his
interviews with them and found: They preferred to remain in plaintiff's
household until defendant learned how to listen to them and treat them with
respect and the children's concerns about defendant were legitimate and
unaddressed, and prompted their rejection of him.
As to the needs of the children, the judge found that plaintiff failed to put
the children's needs above her own when she moved in with her first boyfriend
and left the children in defendant's custody during the school week. However,
plaintiff was able to meet the needs of the children and had made sacrifices to
A-2156-21 68 provide them with a stable home environment, noting their improved academics
following the 2017 custody change.
Relatedly, as to the stability of the home environment offered, the judge
found that plaintiff had provided a loving and stable home environment .
Conversely, when the children spent significant time with defendant, the judge
stated the environment did not permit them to thrive educationally, socially, or
emotionally. He found they matured and enjoyed privacy in plaintiff's home.
Regarding the quality and continuity of the children's education, the judge
found that plaintiff made their education a high priority, helping them with their
homework and facilitating E.M.'s attendance at private school.
As to the fitness of the parents, the judge found that defendant's
psychological fitness was in question, referencing his erratic online posts and
the reports that he threatened to kill himself and that he ignored orders to engage
in therapy. The judge found defendant demonstrated "aggressiveness, hostility,
vindictiveness, and meanness" throughout this matter. Regarding the
geographical proximity of the parents' homes, the court found they lived near
one another.
As to the extent and quality of the time spent with the children, the judge
again found that the videos defendant produced were likely "litigation based in
A-2156-21 69 order to bolster his position." The judge further found that his witnesses who
testified positively about his relationship with the children had limited
experience with, and little exposure to, the children.
Regarding the parents' employment responsibilities, the judge found this
factor not applicable because defendant was self-employed and plaintiff had
been able to handle work and parenting responsibilities. As to the age and
number of the children, the judge reiterated its earlier factual findings.
The judge additionally commented on defendant's coaching of the children
to speak ill of plaintiff, and included quotes from scripts that defendant provided
to them. The judge stated that the children were forced to say "awful and untrue
things about their mother and grandmother," and were exposed to a "constant
litany of complaints" by defendant which resulted in their fear and anxiety .
Judge Bottinelli concluded there was "justifiable disaffection . . . and . . .
animosity" by the children toward defendant which was not "based on alienation
perpetrated by their mother." As a result, he found it was in the children's best
interest to remain living with plaintiff, and declared her to be the parent of
primary residence. The judge withheld parenting time from defendant until he
completed "ongoing, in person therapy" to address the concerns expressed by
Drs. Abrams and Dasher.
A-2156-21 70 The judge ordered the parties to confer with each other regarding
important decisions affecting the children, with plaintiff retaining ultimate
decision-making authority. He held that defendant could move for joint legal
custody after supplying written documentation demonstrating progress in
therapy, including addressing Dr. Abrams' concern for his Asperger's Syndrome
and Dr. Dasher's concern for his narcissism.
3. Admission of Evidence Regarding Custody
We note at the outset that any custody arguments as to E.M. are now moot,
as he reached the age of majority on March 13, 2024. Nonetheless, we consider
defendant's contentions as V.M. remains a minor.
Defendant first asserts the judge erred in refusing to accept testimony from
various experts including Drs. Pasternak, Abrams, and Linet.
"We defer to a trial court's evidentiary ruling absent an abuse of
discretion." State v. Garcia, 245 N.J. 412, 430 (2021). We review "[t]he trial
court's evidentiary ruling[] '. . . under the abuse of discretion standard because,
from its genesis, the decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion.'" State v. Prall, 231 N.J. 567, 580 (2018)
(quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84
(2010)). "Under that deferential standard, we review a trial court's evidentiary
A-2156-21 71 ruling only for a 'clear error in judgment.'" State v. Medina, 242 N.J. 397, 412
(2020) (quoting State v. Scott, 229 N.J. 469, 479 (2017)).
We begin with Dr. Pasternak. At trial, defense counsel himself suggested
that Dr. Pasternak did not need to testify, stating, "I don't know that Dr.
Pasternak frankly is going to be able to add a whole lot to what she already said
in both her report and in her deposition testimony." Defense counsel then agreed
to rely on that evidence in lieu of trial testimony and Judge Bottinelli stated he
would accept the expert's report without her testimony. As defense counsel
chose not to produce Dr. Pasternak as a witness, defendant cannot now claim
error.
Defendant also broadly argues that the judge erred in not permitting Dr.
Abrams to testify as an expert. As discussed, the Essex County judge granted
defendant's application to replace Dr. Abrams with Dr. Linet as defendant's
custody expert. Although the court barred Dr. Abrams's reports as to custody
issues, it permitted Dr. Abrams to present expert opinion on other matters, such
as parental alienation. Despite these parameters, and over the continued
objection of plaintiff's counsel, Judge Bottinelli allowed Dr. Abrams to testify
at length over multiple days of trial. Dr. Abrams described in detail the history
of this matter, including many aspects pertaining to custody.
A-2156-21 72 In the opinion accompanying the FJOD, Judge Bottinelli appears to have
accepted Dr. Abrams's expert opinion regarding her psychological evaluation of
defendant but did not credit her testimony about custody and parental alienation.
The judge's determination was supported as Dr. Abrams testified that she could
not reach a firm opinion about custody and defendant produced another expert
to testify on those topics. Furthermore, Dr. Abrams's credibility was
undermined after she asked the court to disqualify her on several occasions
during her testimony because she did not want to participate any longer in the
trial.
Judge Bottinelli did not abuse his discretion in handling the testimony of
Dr. Abrams. To the contrary, he gave defendant great latitude in his examination
of the expert.
As to Dr. Linet, defendant argues the court erred in its instruction to Dr.
Linet not to rely on Dr. Abrams's reports in his testimony. At trial, Dr. Linet
attempted to quote an interim report issued by Dr. Abrams regarding custody.
There was no error in Judge Bottinelli's instruction. The reports were barred
under the court's prior order.
A-2156-21 73 Judge Bottinelli conducted a thorough analysis of the statutory custody
factors and his findings are supported by the record. We see no reason to disturb
the judge's custody decision.
B. Equitable Distribution
Defendant contends the judge erred in its equitable distribution
determinations. Under N.J.S.A. 2A:34-23.1, the court must consider a number
of factors when determining the equitable distribution of the parties' assets and
liabilities. The statutory factors are "used in concert with the facts of each case,"
and inform the otherwise "broad discretion" accorded to the trial judge.
Steneken v. Steneken, 367 N.J. Super. 427, 434-35 (App. Div. 2004).
As a result, "[w]here the issue on appeal concerns which assets are
available for distribution or the valuation of those assets, it is apparent that the
standard of review is whether the trial judge's findings are supported by adequate
credible evidence in the record." Borodinsky v. Borodinsky, 162 N.J. Super.
437, 443-44 (App. Div. 1978). When the issue involves the manner in which
the trial court allocated the marital assets, the trial court's determination is
subject to an abuse of discretion standard. See id. at 444.
As with his determination of custody, Judge Bottinelli thoroughly
analyzed the statutory factors for equitable distribution: As to the duration of
A-2156-21 74 the marriage, he found that the marriage began on October 18, 2004. Regarding
the age and physical and emotional health of the parties, the judge found plaintiff
was thirty-eight years old with no medical conditions, and that defendant was
sixty-one years old and claimed to be suffering from several maladies affecting
his ability to work, though no evidence was presented to support that contention.
As to the income or property brought to the marriage, the judge found that
defendant's business revenues steadily escalated until 2017, and that defendant
funded the Department of Labor fine in excess of $300,000. Addressing
plaintiff, the judge found that she and Viktoriya came to the United States with
approximately $90,000, as supported by bank records.
Regarding the standard of living established during the marriage, the
judge noted its findings on spousal support (discussed below), but observed that
the parties maintained a comfortable standard of living including travel, Florida
timeshares, savings toward the purchase of rental apartments, and a renovation
of the marital residence. The judge found the factor regarding the existence of
any written agreement concerning property inapplicable. Addressing the
economic circumstances of each party at the time the division of property
becomes effective, the judge found that plaintiff was gainfully employed and
had worked to improve her economic position and earned in excess of $100,000
A-2156-21 75 annually, and that defendant had not met his support obligations. The judge
rejected defendant's assertion of a business downturn and found that he lived
comfortably in the marital home, employed a housekeeper and traveled
regularly, and further found that he engaged in "unusual" business practices as
SpaceAge paid his personal expenses.
As to the income and earning capacity of each party, the judge noted his
findings elsewhere in the opinion, which recited the parties' educational and
employment histories. Regarding the contribution by each party to the
education, training or earning power of the other, the judge found that plaintiff
was given the opportunity to learn new skills while employed at SpaceAge, some
as a result of defendant's training.
As to the contribution of each party to the acquisition, dissipation,
preservation, depreciation or appreciation of the marital property, the judge
found that both parties contributed to the acquisition of the investment
properties and the increase in SpaceAge's value. However, the tactics employed
by defendant and his counsel had prolonged the case and required the liquidation
of four investment properties to fund the litigation.
As to the tax consequences of the proposed distribution, the judge found
that neither party addressed this issue at trial. Similarly, regarding the present
A-2156-21 76 value of the property, the judge found that 2011 values were provided but there
was no evidence of the then-current value of the marital property.
Regarding the need of a parent who has physical custody of a child to own
or occupy the marital residence, the judge found this factor inapplicable. As to
the debts and liabilities of the parties, the judge cited the mortgages on the
remaining apartment units but found the specific loan balances were not
addressed at trial. He also found that plaintiff borrowed $200,000 from a
litigation funding company to finance this litigation and owed the lender
$330,000 at the time of trial. The judge stated defendant enjoyed the benefit of
SpaceAge's corporate counsel, failed to pay support obligations, and took more
than $200,000 from the children's UTMA accounts. As to the need for creation
of a trust fund, the judge found that there was a need to replenish the UTMA
accounts.
Addressing the extent to which a party deferred achieving their career
goals, the judge found the factor inapplicable. Finally, as to any other factors
which the judge might deem relevant, he found that a "disproportionate division
of proceeds" was appropriate because defendant unilaterally took depreciation
on all of the rental units and wrote off management fees. Finally, the judge
A-2156-21 77 found the payments to Viktoriya were gifts, and that it would consider those
gifts in its analysis.
As stated, the judge ordered the sale of all the remaining apartment units,
directing the proceeds of the marital residence as well as the remaining rental
units be paid sixty-five percent to plaintiff and thirty-five percent to defendant.
He also ordered the proceeds of the sale of the SpaceAge offices be paid forty
percent to plaintiff and sixty percent to defendant. The judge awarded plaintiff
the one-bedroom timeshare and awarded defendant the two studio timeshares
that he purchased.
Defendant asserts the judge erred in awarding plaintiff sixty-five percent
of the proceeds of the sale of the marital residence because he purchased the unit
with his own funds, albeit during the marriage. We are unpersuaded.
The evidence established that the couple purchased the unit during the
marriage, although defendant had rented the unit previously, and it was
purchased in cash using defendant's savings, accumulated both before and
during the marriage. Further testimony established that plaintiff managed
extensive renovations of this unit.
In Olen v. Melia, 141 N.J. Super. 111, 113 (App. Div. 1976), this court
held that a marital residence purchased during the marriage is subject to
A-2156-21 78 equitable distribution, even though the funds for the down payment came from
the husband's pre-marriage savings and the husband made all mortgage
payments out of his own income, because the wife contributed to its post-
marriage increase in value.
Here, the judge's award of sixty-five percent of the proceeds of the marital
residence to plaintiff was not error and is consistent with Olen. The court
conducted a thorough review of the equitable distribution factors and its findings
were supported by the evidence in the record and entitled to deference. In
addition, although plaintiff received sixty-five percent of the marital unit
proceeds, the court equitably awarded defendant a greater share of the proceeds
of the SpaceAge units.
1. Credit for Marital Debts
We next address defendant's assertion that the court erred in refusing to
grant him credits for certain marital debts. We again will only disturb the judge's
determination if the findings are not supported by adequate credible evidence in
the record. Borodinsky, 162 N.J. Super. at 443-44.
a. IRS Debt
Defendant contends he is entitled to a credit of $92,388 paid to the IRS
for a "marital debt" on the parties' joint 2010 tax return after audit. Defendant
A-2156-21 79 testified he paid the debt in installments from 2012 through 2015. The only
evidence produced in support of the testimony was defendant's August 10, 2015,
check for $13,000, apparently toward this amount.10 However, the record also
includes a notice from the IRS stating the $13,000 was an overpayment, of which
$12,393.87 was applied toward defendant's 2012 taxes, and $606.48 was
refunded. The judge did not expressly award any credit on this issue but
acknowledged that the IRS audit occurred and resulted in a significant balance
due.
We see no error in the decision to omit credit for this debt. There was
contradictory evidence in the record regarding the debt and its repayment. The
judge reasonably concluded that defendant was not entitled to a credit and its
decision is entitled to deference.
b. Credit Card Spending
Defendant asserts he is entitled to a credit for plaintiff's credit card
spending in anticipation of the divorce filing, and for approximately six weeks
after, totaling approximately $69,000.
10 Defendant's appendix includes several other checks signed by defendant and made payable to the Department of Treasury in 2015 but there is no specific testimony regarding these checks and it is unclear if they were connected to marital debt. A-2156-21 80 Plaintiff conceded she spent significant sums on the marital credit card
around the time of the filing of the complaint, including for extra food and
clothing for the children and furniture to establish the children's new residence,
as well as a retainer of $7,500 for her attorney. Among these charges were $600
at Toys R Us, $965 at Gymboree, $766 at Children's Place, and many purchases
at Restaurant Depot. However, defendant conceded plaintiff charged
approximately $52,000 to the credit card to pay off unspecified timeshare
mortgages, and that she applied the refund from their joint tax return to the credit
card balance. The FJOD did not include a credit to defendant for plaintiff's
spending.
The judge's decision is supported by the evidence that the great majority
of the charges went toward the payoff of the mortgages on one or more of the
marital timeshares and was satisfied by the couple's tax refund. The remainder
of the charges was spread over several months, including March 2011 before
pendente lite support was ordered, and was for food and other necessities for the
children. The judge was within his afforded discretion to deny a credit for these
charges.
A-2156-21 81 c. $22,000 Advance
Defendant contends he is entitled to a credit for the $22,000 advance paid
to plaintiff in 2012, plus interest. This argument is meritless.
When the couple's adjustable-rate mortgage payment declined in 2011,
defendant continued to pay plaintiff the same amount toward that mortgage,
causing her to receive approximately $2,000 extra for eleven months, or
$22,000. This was raised in a motion and the court treated it as an "advance on
equitable distribution" and allowed plaintiff to keep $11,000 and repay $11,000
to defendant. Defendant's half of the $22,000 was repaid by a reduction in the
spousal support owed to plaintiff each month.
The FJOD acknowledged "the pendente lite advance on equitable
distribution by the motion judge." Accordingly, Judge Bottinelli reasonably
concluded that both parties already received their share of these funds as an
advance on equitable distribution and required no credit.
d. Timeshare Credit
Defendant asserts he is entitled to a credit of $10,484.47 spent on the
timeshares with post-separation income. Defendant does not specify in his brief
the precise nature of the funds spent, whether they went toward a mortgage
balance, maintenance, or other items, and whether they went toward the joint
A-2156-21 82 unit, Viktoriya's unit, or the two units he purchased separately. Defendant has
not demonstrated entitlement to a credit.
e. Expert Fees
Defendant seeks a $77,512 credit for expert fees he paid in this matter
against his equitable distribution obligation. Throughout the litigation, and at
the court's direction, defendant was ordered to pay fees to several experts as well
as for custody evaluations.
We have stated that a court may order a party to pay certain expert fees
"to assure a level playing field between the parties." Slutsky, 451 N.J. Super. at
368; see R. 5:3-3(i). Defendant's income was significantly higher than plaintiff's
throughout most of the litigation. Further, defendant's own delays, lack of
cooperation, and misconduct increased the expert fees. Defendant's
litigiousness resulted in several custody experts refusing to work with the
family. We are satisfied the judge was within his afforded discretion to require
defendant to pay some of the fees and he is not entitled to a credit for the
payments. We also note the court, in its discretion, also permitted some of
defendant's own expert expenses to be paid from the joint litigation fund .
A-2156-21 83 2. Additional Awards of Marital Assets
We turn to defendant's contentions alleging error in the award of other
marital assets.
a. Car, Jewelry, and the Payments to Viktoriya
Plaintiff certified in early interrogatory responses that any marital jewelry
was worth less than $2,000, and the marital 2008 Hyundai was worth $13,000 .
At trial, there was testimony that the couple continued to share use of the car,
which aged significantly during the prolonged litigation. The judge reasonably
omitted any award as to these items. The car and jewelry were de minimis assets
and there was no expert testimony as to specific values.
Defendant also alleges he should be compensated for the $291,000 paid
to Viktoriya. We are satisfied the court's decision to consider the transfer of
monies to be gifts was supported by the evidence in the record. Both parties
testified that defendant was aware of some or all of the payments to Viktoriya
and acquiesced in those payments without any demand for repayment.
In addition, defendant or SpaceAge willingly paid all of Viktoriya's living
expenses when she first came to the United States. Thereafter, the parties'
finances were intertwined with those of Viktoriya and defendant routinely
authorized or permitted payments to her. There was also evidence of a pattern
A-2156-21 84 of gifting, as defendant's relative testified that defendant made financial gifts to
his family in India and owned the home in which his father lived. The court
reasonably exercised its afforded discretion in finding the payments to Viktoriya
were gifts, and expressly considered those gifts in its equitable distribution of
the remaining marital apartments and timeshares.
b. SpaceAge Units
Defendant asserts error in the court treating the SpaceAge units, which
Viktoriya purchased during the marriage and he subsequently purchased from
Viktoriya after the divorce filing, as marital assets. We are unconvinced.
The evidence established that the couple jointly agreed to this purchase
and as the judge found, they decided to title the units in Viktoriya's name
because of concerns about ongoing litigation involving SpaceAge as well as the
parties' numerous existing mortgages for the rental units. The court found that
Viktoriya purchased both units for a total of approximately $468,000, of which
$376,426 was paid by a mortgage and $81,575 via a down payment, portions of
which were paid by the parties and Viktoriya herself. The court found that
defendant or SpaceAge paid rent to Viktoriya totaling $208,000 but there was
no formal lease. It further found defendant paid Viktoriya $110,000 to purchase
A-2156-21 85 the units. The court awarded plaintiff forty percent of the proceeds of the sale
of these units and awarded defendant sixty percent of the proceeds.
To be subject to equitable distribution, property must be "legally and
beneficially acquired" during the marriage. N.J.S.A. 2A:34-23(h)(1). Property
may be "legally and beneficially" acquired when a person "acquires a title which
carries with it the effective power to control or use or enjoy." Mey v. Mey, 79
N.J. 121, 124 (1979). If an asset is "acquired" during the marriage, the name or
form in which title is held has no bearing on whether the asset is included in the
marital estate. See Daeschler v. Daeschler, 214 N.J. Super. 545, 551-52 (App.
Div. 1986) (stating assets accumulated during marriage are subject to equitable
distribution, "irrespective of title thereto"), abrogated in part by, Freda v. Com.
Tr. Co. of N.J., 118 N.J. 36 (1990).
We see no error in the judge's determination that these units were marital
assets. The parties and Viktoriya collaborated to obtain the units and crafted an
arrangement to secure the purchase. Plaintiff and defendant each contributed
significantly to the purchase price. Thereafter, plaintiff and defendant were able
to control, use, and enjoy the premises without a formal lease or predictable rent
obligation, although defendant admits he gave Viktoriya money to pay down the
mortgages. The units were legally and beneficially acquired during the
A-2156-21 86 marriage, as they were obtained via the parties' joint efforts and funds and
merely titled to Viktoriya. Defendant's individual purchase of these units after
the divorce filing does not defeat their status as marital assets.
c. Business Valuation of SpaceAge
Defendant argues the judge erred in awarding plaintiff $130,888 for an
increase in the value of SpaceAge because the judge accepted Petrucelli's
valuation despite admitted inaccuracies and without a full cross-examination.
Again, Petrucelli testified that his August 2013 report concluded that
SpaceAge was worth $202,552 as of October 2004, $190,182 as of March 2008,
and $691,207.83 as of February 2011. He amended but did not rescind this
report after defendant provided additional records for 2011. In the amended
report, the expert concluded SpaceAge was worth $857,000 as of February 24,
2011, but offered no update to the values for 2004 and 2008.
Defendant's expert, Goldberg, did not testify but his report was admitted
into evidence and stated that SpaceAge was worth $445,000 as of March 2005,
$560,000 as of March 2008, and $870,000 as of March 2011.
In its equitable distribution award, the judge awarded plaintiff twenty
percent of the increase in SpaceAge's value from 2004 until 2011, which the
court calculated as equaling $130,888. The judge relied on Petrucelli's figures
A-2156-21 87 and found that SpaceAge was worth $202,560 11 as of October 2004, and
$857,000 as of February 2011. The judge found Petrucelli to be well-qualified,
straight forward, and he clearly explained his reasoning. The judge found that
plaintiff's efforts substantially contributed to the growth of SpaceAge and that
she was entitled to a twenty percent share of this increase in value during the
marriage. We are satisfied the judge's valuation is supported by the record.
We also see no merit to defendant's contention that he did not have the
opportunity to fully examine Petrucelli. The record reflects defense counsel
cross-examined Petrucelli at length over the course of two days. At the close of
the second day, defense counsel did not affirmatively seek to bring Petrucelli
back for additional testimony.
Under N.J.R.E. 611, the trial court is required to "exercise reasonable
control over the mode and order of interrogating witnesses and presenting
evidence." That mandate includes the ability to "curtail questioning to avoid
repetition and ensure that the testimony stays focused only on relevant issues."
State v. Pinkston, 233 N.J. 495, 511 (2018). We see no error in the judge's
handling of Petrucelli's testimony.
11 This figure is $8 more than Petrucelli's testimony initially established . A-2156-21 88 C. Spousal Support
Defendant raises numerous issues regarding the court's award of spousal
support. After careful consideration, we find them meritless.
"[T]he goal of a proper alimony award is to assist the supported spouse in
achieving a lifestyle that is reasonably comparable to the one enjoyed while
living with the supporting spouse during the marriage." Crews v. Crews, 164
N.J. 11, 16 (2000). In awarding alimony, the court must consider the thirteen
factors enumerated in N.J.S.A. 2A:34-23(b), along with any other factors
deemed relevant. Heinl v. Heinl, 287 N.J. Super. 337, 344-45 (App. Div. 1996).
The court must articulate specific findings of fact and conclusions of law with
respect to the factors.
"A Family Part judge has broad discretion in setting an alimony award
. . . ." Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). Again, because
of the family courts' special jurisdiction and expertise in family matters, we
accord deference to family court factfinding. Cesare, 154 N.J. at 413. "Of
course, [as to alimony] the exercise of this discretion is not limitless[,]" and is
"frame[d]" by the statutory factors set forth in N.J.S.A. 2A:34-23(b). Steneken,
367 N.J. Super. at 434.
A-2156-21 89 We will not disturb an alimony award if the trial judge's conclusions are
consistent with the law and not "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, 316 (App. Div. 2001) (quoting Raynor v. Raynor,
319 N.J. Super. 591, 605 (App. Div. 1999)). The question is whether the trial
judge's factual findings are supported by "adequate, substantial, credible
evidence" in the record and the judge's conclusions are in accordance with the
governing principles. Ibid.
Judge Bottinelli began his thorough analysis by acknowledging the initial
$3,000 per month pendente lite spousal support award which was reduced to
$1,000 per month upon plaintiff's cohabitation with her first boyfriend,
retroactive to July 2012. The judge found these awards were insufficient to
allow plaintiff to maintain the marital lifestyle and undertook a comprehensive
analysis of each of the statutory factors.
As to the actual need and ability of the parties to pay, the judge found "no
question" that defendant had the ability to pay support even beyond the $3,000
per month previously awarded because of his stated individual income, which
exceeded $225,000 in some years. The judge found the $3,000 monthly spousal
support award omitted a savings component, which he determined to be equal
A-2156-21 90 to "at least the annual salary earned by . . . plaintiff from employment at
SpaceAge," or $39,915.18. The judge concluded that defendant used SpaceAge
as his "private piggy bank" because he used it to pay his personal expenses, took
loans as needed, and paid himself "rent" on the SpaceAge offices when it suited
him.
Regarding the duration of the marriage, the judge found the marriage
began on October 18, 2004, and continued until the filing of the complaint on
February 24, 2011, for a duration of seventy-six months. As to the age, physical
and emotional health of the parties, the judge reiterated his findings previously
made adding that defendant failed to demonstrate he suffers from any medical
condition affecting his ability to work.
Regarding the standard of living, the judge relied on his earlier findings
without explicitly calculating the marital lifestyle.12 The judge appears to have
largely credited plaintiff's estimates of the marital lifestyle as established in her
2011 CIS—roughly $180,000 per year. The judge found plaintiff earned
12 While recent caselaw calls for a numerical quantification of the marital lifestyle, S.W. v. G.M., 462 N.J. Super. 522, 532 (App. Div. 2020), defendant has not raised this issue on appeal. An issue not briefed on appeal is waived. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008).
A-2156-21 91 $104,000 at the time of trial and that defendant determined his own
compensation from SpaceAge. The judge stated that defendant had the "ability
to have a lifestyle well in excess of that enjoyed by his spouse."
Concerning the earning capacities and employability of the parties, the
judge found that plaintiff held a graduate degree and had many years of work
experience, and that defendant was a graduate of military school and owned his
own business as a computer programmer. As to the length of absence from the
job market of the party seeking maintenance, the court found that plaintiff was
out of work for approximately eighteen months following her termination from
SpaceAge.
Regarding the parental responsibilities for the children, the judge found
that plaintiff had been solely responsible for the children and their upbringing
since September 2017 and would continue to be until defendant complied with
the court's custody and parenting time directives. The judge found that the time
and expense necessary to acquire sufficient education factor was not addressed
at trial.
As to the history of the financial or non-financial contributions to the
marriage by each party, the judge noted plaintiff's role in the children's
upbringing and defendant's failure to pay the ordered child support. He found
A-2156-21 92 that plaintiff and Viktoriya had been responsible for meeting the children's
Regarding the equitable distribution ordered, the judge referenced that
section of his opinion. As to the income available through investment of any
assets, the judge cited the parties' rental apartment units. Concerning the tax
treatment of any alimony award, the judge held that alimony would not be tax
deductible for defendant nor included as income to plaintiff. As to the pendente
lite support paid, the judge reiterated its earlier discussion of the pendente lite
awards. Regarding any other factors which the judge might deem relevant, the
judge cited its "previous discussions."
After weighing these factors, particularly the absence of a savings
component in the initial award, Judge Bottinelli concluded that spousal support
would be fixed at $4,714 per month from the date of the complaint until August
1, 2016, the date plaintiff stipulated to cohabitation with Rothstein. Therefore,
limited durational spousal support was set for 65 months, totaling $306,410 .
Defendant was credited $13,650 for rent paid by the first boyfriend, as well as
"$40,700 in payments [defendant] made and monies which were seized by
[p]robation." The judge ordered defendant to pay plaintiff the balance—
$252,054—in spousal support arrears.
A-2156-21 93 We turn to a discussion of the specific errors alleged by defendant
regarding the spousal support award.
1. Length of the Marriage
Defendant challenges the judge's finding that the legal marriage occurred
in October 2004. We have already set forth the conflicting testimony regarding
this issue.
The judge expressly found that the marriage began on October 18, 2004,
when the couple "participated in a religious ceremony to bless their marriage."
He found that the parties held themselves out to be married after that date for
tax purposes and when buying property. We defer to this factual finding, see
Cesare, 154 N.J. at 411-12, as supported by the evidence, including plaintiff's
and one of defendant's relative's sworn testimony.
2. Cohabitation
Defendant asserts the judge erred in its cohabitation analysis because it
required him to prove cohabitation, rather than allowing him to present a prima
facie case of cohabitation and then shift the burden of proof to plaintiff. The
assertion lacks merit.
N.J.S.A. 2A:34-23(n) provides:
Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a
A-2156-21 94 mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.
Significantly, there is a rebuttable presumption of changed circumstances
arising upon a prima facie showing of cohabitation. Ozolins v. Ozolins, 308
N.J. Super 243, 248 (App. Div. 1998). The burden of proof, which is ordinarily
on the party seeking modification of the support award, shifts to the dependent
spouse to show there is no economic benefit. Id. at 248-49.
In light of defendant's allegation of plaintiff's cohabitation with both the
first boyfriend and Rothstein, there was significant trial testimony on this issue.
In the FJOD, Judge Bottinelli separately analyzed the statutory cohabitation
factors in N.J.S.A. 2A:34-23(n) as to both gentlemen and made factual findings
which are not specifically challenged.
The judge did not find true cohabitation with the first boyfriend but
awarded a credit of $1,050 per month for the thirteen months when the boyfriend
contributed to plaintiff's rent. The judge did find plaintiff cohabited with
Rothstein beginning in August 2016 based on its analysis of the statutory factors
and plaintiff's stipulation. But the judge did not find cohabitation from 2013 to
A-2156-21 95 2016, when plaintiff stated she lived in a separate unit in Rothstein's home and
he was barred from contact with the children.
The judge did not require defendant to prove cohabitation. To the
contrary, the judge allowed plaintiff to present significant testimony on this
issue, including testimony about the economic impact of her alleged
cohabitation consistent with Ozolins. She described her financial affairs,
including her payment of rent to Rothstein. After hearing this evidence, the
judge found that cohabitation with Rothstein began in August 2016.
3. Calculation of Past Payments
Defendant contends the judge erred in not awarding him credits for the
amounts he paid in spousal support. In his decision, the judge relied on a
probation report to determine the amount defendant had paid. Defendant alleges
the report was incorrect and that he had provided the correct document in the
record. He did not.
Rule 2:6-1(a)(1) provides:
The appendix prepared by the appellant or jointly by the appellant and the respondent shall contain . . . (I) such other parts of the record, excluding the stenographic transcript, as are essential to the proper consideration of the issues . . . .
A-2156-21 96 Since defendant has not provided the necessary documentation to demonstrate
even the possibility of error, we cannot perform a meaningful review of the
issue. Therefore, we accord the court its due deference and find no error.
4. Child Support
Defendant contends the court erred in its child support award. We
disagree.
Child support awards and modifications are "left to the sound discretion
of the trial court" and we are limited to determining whether there was an abuse
of discretion. Innes v. Innes, 117 N.J. 496, 504 (1990). As we have stated,
"[t]he 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, 340 N.J. Super. at 315-16
(citation omitted) (quoting Raynor, 319 N.J. Super. at 605) (internal quotation
marks omitted).
"An abuse of discretion 'arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Conforti v. Cnty. of Ocean, 255 N.J. 142, 192 (2023)
A-2156-21 97 (internal quotes omitted) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002)).
Rule 5:6A provides that the Child Support Guidelines "shall be applied
[in] an application to establish or modify child support" and may only be
modified for good cause shown. Where the family income exceeds $187,200,
"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" together with the factors specified in N.J.S.A. 2A:34-23. Child
Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix
IX-A to R. 5:6A, ¶ 20(b) www.gannlaw.com (2025). See also Isaacson v.
Isaacson, 348 N.J. Super. 560, 581 (App. Div. 2002) (noting the "maximum
amount provided for in the guidelines should be 'supplemented' by an additional
award determined through application of the statutory factors set forth in
N.J.S.A. 2A:34-23(a)").
Nevertheless, it is well within the trial court's discretion to determine "the
choice of the methodology to employ in arriving at a child support award when
the total income of the parties exceeds the guidelines," recognizing that the "goal
is to calculate a child support award that is in the best interest of the child after
A-2156-21 98 giving due consideration to the statutory factors and the guidelines." Caplan v.
Caplan, 182 N.J. 250, 272 (2005).
N.J.S.A. 2A:34-23(a) establishes the factors a court shall consider "[i]n
determining the amount to be paid by a parent for support of the child and the
period during which the duty of support is owed."
Throughout his decision, Judge Bottinelli carefully addressed each of the
statutory factors. As to the needs of the children, the judge found their needs
would change as they aged and noted their increased commuting expenses to
private high schools. Regarding the standard of living and economic
circumstances of each parent, the judge discussed the family living together in
their apartment in Jersey City and found the children's then-current home was
"in line" with the marital standard.
As to all sources of income and assets of each parent, the judge first
recognized the case involved an income situation in excess of $187,200 under
the Child Support Guidelines. The judge noted plaintiff earned an average of
$39,915.18 during the marriage, and after the complaint filing, her salary
increased to approximately $100,000. The judge also discussed defendant's
earnings and noted a significant drop in his gross income beginning in 2017. He
outlined defendant's W-2 earnings of $340,000 in 2010, which dropped to
A-2156-21 99 $57,417 by 2020, and separately addressed his income from the rental
properties. The judge noted Petrucelli's conclusion, that with defendant's years
of experience, his annual W-2 salary should be approximately $207,040 for 2017
and thereafter. The court determined that it was in the best interests of the
children to impute income to defendant from 2017 onward of at least $207,040.
Regarding the earning ability of each parent, the judge reiterated his prior
findings. As to the need and capacity of the children for education, the judge
found they were very intelligent and would continue their education beyond high
school. Concerning the age and health of the child and each parent, the judge
renewed his prior findings. As to the income, assets, and earning ability of the
children, the judge discussed defendant's use of their UTMA funds.
Concerning the responsibility of the parents for the court -ordered support
of others, the judge found this factor inapplicable. As to the reasonable debts
and liabilities of each child and parent, the judge found the children had no debts
and the parents' debts were addressed in the equitable distribution determination.
After analyzing the factors, the judge found the "floor" award of $589
under the Child Support Guidelines needed to be increased because of the
family's high income. He ordered defendant to pay child support of $619 per
week from 2011 through 2020. The judge held that as of September 2020, the
A-2156-21 100 amount would increase to $675 per week because of the ages of the children and
their growing extraordinary expenses.
We are satisfied the judge conducted a reasoned analysis of the applicable
factors and entered an award that was consistent with the evidence in the record.
He properly utilized the Child Support Guidelines and included an additional
award in light of the family's high income. We briefly address defendant's
challenges to the child support award.
a. UTMA accounts
Defendant argues the judge erred in finding he created an irrevocable trust
when he put funds into the children's UTMA accounts, and in converting those
funds into a child support obligation. This argument lacks merit.
In the FJOD, the judge found that defendant opened UTMA accounts for
both children, then deposited and subsequently removed $50,830 from V.M.'s
account and $161,354 from E.M.'s account. The judge ordered defendant to
repay $212,184 plus interest of $12,801, for a total of $224,985. This sum was
to be paid from the litigation fund and considered a child support obligation.
N.J.S.A. 46:38A-24 plainly provides that transfers to a UTMA account
are "irrevocable, and the custodial property is indefeasibly vested in the minor ."
A-2156-21 101 The judge was within his afforded discretion to order the repayment of these
funds as the monies belonged to the children and had to be repaid.
Defendant briefly argues the money he deposited into the UTMA accounts
was not his, but rather marital property. However, the evidence is clear that the
funds included, among other things, defendant's post-complaint SpaceAge
salary and SpaceAge's office rental payments.
Defendant further argues the judge erred in not considering the UTMA
funds as a factor to reduce the "need" of the children for child support purposes.
However, N.J.S.A. 46:38A-34 plainly provides that UTMA funds are "in
addition to, not in substitution for, and does not affect any obligation of a person
to support the minor." See also Colca v. Anson, 413 N.J. Super. 405, 416 (App.
Div. 2010) ("[A] child's assets may not be used to fulfill a financially able
parent's support obligation.").
b. $60,000 Credit
Defendant contends the judge erred in failing to credit him $60,000 in
child support paid by check for the twenty months from April 2011 until
November 2012.
The judge calculated there were 446 weeks from the filing of the
complaint until September 1, 2020, and 128 weeks from that time until the date
A-2156-21 102 of the opinion on February 15, 2022, resulting in defendant owing $276,074 for
the initial period and $86,400 through the date of the opinion, for a total of
$362,474. The judge stated the "most recent child support financial audit report
from the Child Support Enforcement System" dated January 14, 2022, showed
that defendant was credited with $248,486.14 in child support payments since
the filing of the complaint, leaving arrears of $113,988. That document is not
included in the record.
Defendant relies on an earlier document dated October 4, 2021 to support
his argument and states it is the document to which the judge refers to in its
opinion. That contention is disingenuous as the judge explicitly refers to a
calculation in a January 14, 2022 record.
As stated, Rule 2:6-1(a)(1)(I) requires an appellant to provide this court
with the parts of the record that "are essential to the proper consideration of the
issues." Defendant has failed to include the documents necessary to address this
argument. The record does not include the "most recent child support financial
audit report from the Child Support Enforcement System" dated January 14,
2022, on which the judge relied, and defendant does not allege any error in the
judge's reliance on that document. Defendant's omission precludes review of
the judge's decision on this point and he thus failed to demonstrate error.
A-2156-21 103 c. 2012-2017 Support
Defendant asserts the judge erred in finding he owed child support for the
period of 2012 to 2017, when he had custody of the children four nights per
week. The judge referenced the shared parenting schedule in place during parts
of that timeframe in the FJOD.
Under the Child Support Guidelines, in shared-parenting arrangements,
costs are shared by the parents in proportion to their relative incomes only, not
in proportion to time spent with the children. Child Support Guidelines, Pressler
& Verniero, Appendix IX-A to R. 5:6A, ¶ 14(f).
The judge appropriately acknowledged the custody arrangement between
2012 and 2017 and nonetheless found that child support should be the same
amount throughout the course of the litigation, irrespective of custody. It
recognized that even though the parties had equal parenting time from 2012 to
2017, plaintiff still had a need for child support. The findings are consistent
with the guidelines, which reflect that child support obligations must consider
the relative incomes of the parties. Defendant earned significantly more than
plaintiff throughout most of the marriage and the pendente lite period.
A-2156-21 104 d. Imputed Income
Defendant briefly argues the judge erred in imputing income to him
because his income dropped when he was in jail following his arrest at West
Point. The allegation is meritless.
In the FJOD, the judge found it was in the best interest of the children to
use an imputed income figure for defendant, because his income had dropped in
2017 and because of considerations involving the rental income paid by
SpaceAge. The judge credited an estimate that defendant's salary should be
approximately $207,040 from 2017 onward based on data from the New Jersey
Department of Labor and the Bureau of Labor Statistics, as included in
Petrucelli's report.
Both the Child Support Guidelines and case law permit imputation of
income when determining child support obligations. See Tash v. Tash, 353 N.J.
Super. 94, 99 (App. Div. 2002). Further, we have stated that "[t]he potential
earning capacity of an individual, not his or her actual income, should be
considered when determining the amount a supporting party must pay."
Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999).
The judge did not err in imputing income to defendant. He did so using
an estimate offered by a qualified expert. Defendant's argument that his income
A-2156-21 105 declined because he was incarcerated for two weeks in 2017 but remained in
contact with his business is disingenuous. There was no testimony that the
incarceration adversely affected his business.
D. Sanctions
Defendant challenges the entry of orders for sanctions during the litigation
and in the FJOD.
This court has described the imposition of a monetary sanction as "an
entirely proper tool to compel compliance with a court order." Franklin Twp.
Bd. of Educ. v. Quakertown Educ. Ass'n, 274 N.J. Super. 47, 55 (App. Div.
1994). Monetary sanctions "must be fashioned in an amount sufficient to sting
and force compliance[] but must not be so excessive as to constitute ruinous
punishment." E. Brunswick Bd. of Educ. v. E. Brunswick Educ. Ass'n, 235 N.J.
Super. 417, 422 (App. Div. 1989). We review a trial court's imposition of
sanctions under an abuse of discretion standard. See Innes v. Carrascosa, 391
N.J. Super. 453, 498 (App. Div. 2007).
1. Fees and Sanctions for the Skype Call
In April 2021, the judge granted defendant's request that the children have
a Skype call with his father, to which plaintiff consented. However, the judge
found defendant in violation of litigant's rights for making this "multiply denied
A-2156-21 106 request for parenting time." In reviewing the proposed order, the judge found
defense counsel had "inserted language into the proposed order . . . to, in effect,
get around prior orders by mandating [that] the video call with the grandfather
take place in [defendant's] home." In addition, counsel added a provision
granting defendant "temporary sole, legal, and physical custody of the parties'
two minor children until further order of the [c]ourt." The judge described
defense counsel's conduct as "outrageous."
The judge ordered defendant to pay plaintiff's counsel its costs of
$4,597.50 to defend the motion. The judge further sanctioned defendant's
counsel $500 for his failure to comply with Rule 1:6-2(c), which requires
conferring with opposing counsel prior to filing an application. The judge noted
the Supreme Court's April 2021 order had "expressed a concern of the
aggressive, hostile conduct by defendant's counsel" and "instructed that it is
proper to sanction counsel for willful conduct obstructing the adjudication of
the proceedings."
Pursuant to Rule 1:10-3, a court may impose counsel fees where a party
violates an existing order. Here, the judge reasonably imposed counsel fees
because defendant sought additional parenting time despite having been denied
such time in numerous previous orders, and despite the court's repeated
A-2156-21 107 admonition that it would be addressed at trial. Furthermore, the Supreme Court
condoned the sanction in light of counsel's ongoing "aggressive, hostile
conduct."
2. Sanctions in the FJOD
In his opinion accompanying the FJOD, the judge entered a $35,000
sanction against defendant, stating:
After considering the bad faith actions by . . . defendant in repeatedly violating [c]ourt [o]rders which include[,] not only the [g]ag [o]rder[,] but also failing to complete the [last ordered] psychological evaluation . . . and having a non-custody witness ([Dr.] Abrams) present to listen in on the interview with the children, a sanction of $35,000 is imposed.
Rule 5:3-7 authorizes a court to impose an economic sanction on a party
for violating an order regarding custody, parenting time, or spousal or child
support. Judicially crafted sanctions are not limited to actual damages, but they
must be "rationally related to the desideratum of imposing a 'sting' on the
offending party within its reasonable economic means." Innes, 391 N.J. Super.
at 498 (quoting Pressler & Verniero, Current N.J. Court Rules, comment 4.4.3
on R.1:10-3 (2007)).
The record is replete with defendant's violations of various court orders
regarding parenting time, spousal support, and child support, as well as the gag
A-2156-21 108 orders which related to custody. He was repeatedly found to be in violation of
litigant's rights and did not complete the court-ordered therapy or the ordered
psychological evaluation. Dr. Abrams informed the court that she covertly
listened in on the court's confidential conversation with the children at defense
counsel's invitation. The judge did not abuse his discretion in imposing the
$35,000 sanction in the FJOD.
E. Counsel Fees
Defendant asserts the judge erred in awarding plaintiff almost $2 million
in counsel fees.
Rule 4:42-9 permits a court to award fees in a family action upon a
weighing of the factors set forth in Rule 5:3-5(c). The court must also consider
the mandates of RPC 1.5(a).
Typically, the award of counsel fees and costs in matrimonial actions rests
in the sound discretion of the trial court. 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)), or a clear error in judgment, Tannen v.
Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010). Where case law, statutes,
A-2156-21 109 and rules are followed and the judge makes appropriate findings of fact, the fee
award is entitled to deference. Yueh v. Yueh, 329 N.J. Super. 447, 466-69 (App.
Div. 2000); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 4.7 on
R. 5:3-5 (2025); J.E.V. v. K.V., 426 N.J. Super. 475, 492-93 (App. Div. 2012)
(a matrimonial matter).
As a threshold matter, Judge Bottinelli found that plaintiff's counsel
submitted a comprehensive retainer agreement with supporting documentation
and complete billing records. The judge then addressed each of the requisite
factors in Rule 5:3-5(c): As to the financial circumstances of the parties, the
judge reiterated its prior findings. Regarding the ability of the parties to pay,
the judge explained that even with the equitable distribution award and her own
earnings, plaintiff would be unable to pay her outstanding counsel fees. He
found that defendant had the ability to earn significantly more than he alleged
at the time of trial, as his business should be growing and he had developed
valuable software. The judge found defendant had acted in bad faith and
"dr[o]ve[] up the cost of litigation to an unheard of, and absurd, point."
The judge included a comprehensive discussion of the reasonableness and
good faith of the positions advanced by the parties, detailing the significant fees
plaintiff incurred in responding to defendant's dilatory conduct. The judge also
A-2156-21 110 provided detailed descriptions of the myriad of instances in which defendant and
his counsel "engaged in unreasonable behavior and in bad faith throughout this
litigation." For example, the judge cited defendant's various Facebook and
YouTube posts in violation of the gag order, including his statement, "give my
children freedom or give me death."
The judge detailed defendant's repeated violations of litigant's rights,
including his failure to pay support, as well as his December 2018 interference
with obtaining the court-ordered line of credit. He described defendant's
repeated motions to restore custody despite his failure to comply with the court's
reunification plans, and his ongoing efforts to vacate the gag orders.
The judge also highlighted defense counsel's description of the Essex
County trial judge as a "child predator" and his pursuit of various federal actions,
including those against each of the judges handling the matter and on behalf of
journalists seeking information about the litigation. The judge continued,
detailing the actions of defendant and his counsel throughout the trial itself,
including an opening statement which spanned three trial days, and found that
defendant called several witnesses who offered "little or no usable information."
Concerning the extent of the fees incurred by both parties, the judge
reiterated its previous discussion of plaintiff's fees and noted the extent of
A-2156-21 111 defendant's and Viktoriya's fees were unknown, as neither submitted a
certification of services.
Regarding any fees previously awarded, the judge referenced the awards
to plaintiff throughout this matter totaling $31,328.62. As to the amount of fees
previously paid by each party, the judge found that plaintiff had already paid a
total of $1,008,982.63, including fees to two prior counsel and $550,577.72 to
current counsel Pashman Stein. The judge noted there was an outstanding
balance owed to Pashman Stein of $1,980,303.20 as of February 3, 2022.
Regarding the results obtained, the judge found plaintiff had been granted
a divorce and custody, and that her requests for spousal support, child support,
and equitable distribution were addressed. He found that defendant and
SpaceAge had "failed to achieve" what was sought in their pleadings.
As to the degree to which fees were incurred to enforce existing orders or
to compel discovery, the judge referenced its earlier discussions about plaintiff's
and the court's difficulty in enforcing orders, and noted that at least 110 orders
had been issued in this case.
Finally, as to any other factor bearing on the fairness of an award, the
judge cited the Supreme Court's April 6, 2021 order, detailed above, including
its "conclusion that the prior judges recused themselves in this matter based in
A-2156-21 112 part, if not exclusively, on defense counsel's course of conduct" such as
"describing the presiding judge as a 'child predator' in court, and driving to the
presiding judge's home with a process server roughly one week after a tragic
shooting at the home of a federal judge."
Based on his analysis, the judge concluded that defendant's "bad faith
throughout this litigation, with the support and encouragement of [defense
counsel], is evident and clear." He found that due to defendant's "wanton and
willful violations" of the court's orders, plaintiff was forced to incur counsel fees
totaling nearly $3 million.
The judge also considered the factors under RPC 1.5(a). As to the time
and labor required, the novelty and difficulty of the questions involved, and the
skill requisite to perform the legal service properly, the judge found this matter
did not present significantly difficult legal issues but was made arduous by the
litigious nature of defendant and his attorney. The judge said defendant and his
counsel employed "scorched earth" tactics to delay and intimidate both plaintiff
and the court.
Regarding the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the lawyer, the
judge found that plaintiff was acutely aware of the time and attention that would
A-2156-21 113 be required of her counsel, and that by undertaking this case, plaintiff's counsel
was precluded from accepting other work. He described the "massive" skills
necessary to handle the case and the "enormous number of documents" involved.
The judge observed that Pashman Stein had spent 4,500 hours on this case since
it began its representation of plaintiff, had written off approximately 700 hours
of billable time, and waived its standard interest rate on outstanding invoices.
The judge concluded that plaintiff's counsel acted professionally and reasonably
in the litigation.
Concerning the fee customarily charged, the judge found the hourly rates
were fair for the area and within the "range of reasonableness" in matrimonial
litigation. He expressly considered the services necessary to vindicate plaintiff's
legal rights in light of defendant's litigiousness. As to the amount involved and
the results obtained, the judge found that the best interests of the children was
paramount here.
As to the nature and length of the professional relationship with the client,
the judge found that Pashman Stein's representation began in 2017 and continued
to present. Regarding the experience, reputation, and ability of the lawyers, the
judge found that lead counsel was experienced and demonstrated an ability to
A-2156-21 114 handle the "delicate and emotional nature" of this case, as a "fierce advocate"
for her client. Finally, the judge found the fee was fixed.
The judge advised he had "scrutinized" more than 400 pages of billing
records. Although he found some work performed by an associate could have
been performed by a paralegal, those billings "pale[d] in comparison to the
absolute need for quick legal analysis" so as not to detract from counsel's
advocacy or impact the flow of trial. The judge concluded the fee requested was
fair and reasonable, and entered the award for $1,980,303.20.
Defendant asserts the court erred in failing to conduct a proper analysis of
fees and instead approved the application in its entirety without allowing him to
object. We disagree.
Both parties addressed the issue of counsel fees in their closing briefs.
Thereafter, Pashman Stein submitted its affidavit of services with supporting
invoices to the court and defendant. Defendant did not respond to the
application or request additional time from the court to do so.
We are satisfied the judge conducted an exhaustive analysis of the counsel
fee application, discussing it over more than fifty pages of his opinion. His
findings reflected the misconduct of defendant and his counsel throughout this
matter, including defendant's relentless online posts in violation of the gag order,
A-2156-21 115 and defense counsel's unprofessional behavior. 13 It was the conduct of defendant
and his counsel that prolonged this otherwise straightforward matter and caused
plaintiff to incur significant fees. The judge's findings are amply supported by
the record and will not be disturbed.
Defendant also contends the court erred in awarding plaintiff fees because
she acted in bad faith and falsified evidence during the litigation. As stated, the
judge only found bad faith on defendant's (and his counsel's) part.
One consideration in granting an award of fees is whether a party acted in
bad faith throughout the litigation. Borzillo v. Borzillo, 259 N.J. Super. 286,
291-94 (Ch. Div. 1992); Williams, 59 N.J. at 233. Bad faith may be
demonstrated by misuse or abuse of process, seeking relief which one knows or
should know that no reasonable argument could be advanced in fact or law to
support, intentional misrepresentation of facts or law, and acts of a losing party
that are vexatious, wanton or carried out for oppressive reasons. Borzillo, 259
N.J. Super. at 293-94.
We again discern no error in the fee award. Although there may have been
some evidence of misconduct on plaintiff's part, it would only be one
13 In one instance, after being admonished for asking an expert substantive questions during voir dire, defense counsel stated, "[w]ell a lawyer has a right to be obnoxious, Your Honor." A-2156-21 116 consideration in determining a fee award. Id. at 291-94. Further, plaintiff's
behavior pales in comparison to defendant's relentless misconduct throughout
the litigation. For the reasons stated, we decline to disturb the fee award.
F. Gag Orders
Defendant argues the court erred in entering "gag orders" against him in
April 2014 and June 2015 limiting his online posts about the litigation, and again
in 2020 when it barred his contact with private schools his son was applying to.
He further alleges error in the judge's decision to uphold these gag orders in the
FJOD.
We have already related the history of the gag orders. The order currently
in place only restricts defendant from publicly discussing "any custody
information" and from contacting any private high schools regarding E.M.'s
applications.14
The First Amendment to the United States Constitution provides that
"Congress shall make no law . . . abridging the freedom of speech." U.S. Const.
amend. I. This provision was made applicable to the states by the Fourteenth
Amendment. U.S. Const. amend. XIV, § 1.
14 Since E.M. has reached majority age and has likely matriculated, the second portion of the gag order may be moot. A-2156-21 117 Article I, Paragraph 6 of the New Jersey Constitution provides: "Every
person may freely speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that right. No law shall be passed to restrain or
abridge the liberty of speech or of the press." The proponent of a prior restraint
on free speech "carries a heavy burden of showing justification for the
imposition of such a restraint." Nebraska Press Ass'n v. Stuart, 427 U.S. 539,
558 (1976).
A parent's rights, "though fundamentally important, are not absolute."
K.H.O., 161 N.J. at 347. In custody matters, "the primary and overarching
consideration is the best interest of the child." Kinsella, 150 N.J. at 317. In
Borra v. Borra, 333 N.J. Super. 607, 612 (Ch. Div. 2000), the Chancery Division
permitted an injunction barring a former husband from opposing his former
wife's application to join a country club. The Borra court found that any
imposition on his freedom of speech was secondary to the welfare of the
children, who would be harmed if "caught in parental conflicts." Id. at 614.
Further, at least in civil matters, courts are expressly permitted to impose gag
orders. See Payton v. N.J. Tpk. Auth., 148 N.J. 524, 542 (1997) (approving the
issuance of gag orders to preserve confidential investigations).
A-2156-21 118 Under the narrow and unique circumstances presented here, we are
satisfied the gag orders were consistent with the best interests of the child
standard. Defendant's relentless condemnation of plaintiff and the court system
as well as his litigation against E.M.'s school demonstrated a strong justification
for a prior restraint consistent with Nebraska Press Association. In addition,
Borra supports some reasonable limitation on free speech to protect a child's
welfare. We are satisfied the public dissemination of custody information in the
manner defendant did so here was appropriately and reasonably limited.
G. The Trespass Action
Defendant contends the court erred initially in failing to grant summary
judgment and in later dismissing his claim for trespass, and in finding no
damages.
As stated, the court denied defendant's motion for summary judgment in
2018 regarding his complaint alleging plaintiff trespassed in his apartment. At
oral argument on the motion, defense counsel said the trespass was an act of
domestic violence or "it could be a civil matter involving domestic violence.
But, and[] again, that's just the way it is by law."
The court noted that plaintiff admitted setting one foot in the marital
apartment in exigent circumstances and there was "a sufficient issue of fact as
A-2156-21 119 to whether it was warranted based on . . . exigent circumstances." The court
also commented the claim for trespass may have been more appropriately
brought as one to enforce litigant's rights.
In the FJOD, the judge analyzed the trespass claim in the context of the
Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, and found
that plaintiff's act of "entering defendant's apartment or merely standing at the
threshold (where the children had their own room) for the purpose of collecting
the children's necessities does not constitute a violation under the . . . Act." The
judge found that plaintiff was a "co-owner of the apartment" and even if she was
told not to enter the apartment, "the children needed to get their things." The
judge separately held, "[a]ny claim . . . for compensation for the asserted tort of
'trespass' is dismissed with prejudice as [defendant] has shown no damages."
An action for trespass in tort arises upon the unauthorized entry onto
another's property, real or personal. State v. Wouters, 71 N.J. Super. 479, 485
(App. Div. 1962). Under the Act, "criminal trespass" 15 is listed as a predicate
act of domestic violence. N.J.S.A. 2C:25-19(a)(12).
15 A person commits an offense of criminal trespass if, "knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof ." N.J.S.A. 2C:18-3(a). A-2156-21 120 In order to decide whether summary judgment is appropriate under Rule
4:46-2(c), "the court must accept as true all the evidence which supports the
position of the party defending against the motion and must accord him [or her]
the benefit of all the legitimate inferences which can be deduced therefrom, and
if reasonable minds could differ, the motion must be denied." Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 535 (1995) (alteration in original) (quoting
Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).
On appeal, we review summary judgment orders de novo, utilizing the
same standards applied by the trial courts. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). When no issue
of fact exists, and only a question of law remains, a reviewing court "affords no
special deference to the legal determinations of the trial court." Ibid.
We discern no error in the court's determinations on the summary
judgment motion and in the FJOD. Plaintiff was a co-owner of this apartment,
which constituted marital property. While a 2011 court order directed her to
vacate the apartment, she remained a record owner and an action for trespass in
tort clearly requires entry onto the property of "another." As the court rightly
concluded on summary judgment, defendant's remedy lay in an application to
enforce litigant's rights rather than an action for trespass.
A-2156-21 121 Furthermore, as the judge added in the FJOD, defendant failed to
demonstrate any damages, even nominally, because plaintiff did not commit the
tort of trespass by entering an apartment she jointly owned. The children went
into the apartment and collected their belongings. There was no error in
dismissing the trespass action.
III.
The SpaceAge Action
In this action, SpaceAge sued plaintiff and Viktoriya, alleging they
improperly took cash and other benefits from SpaceAge (civil case), and
Victoriya owed it for a security deposit it paid to her as the landlord of
SpaceAge's office (Special Civil Part case). These cases were consolidated with
the Divorce Action and testimony on the issues was taken at trial. Judge
Bottinelli considered and dismissed all of the SpaceAge claims.
On appeal, SpaceAge contends the Essex County judge erred in denying
its motion for summary judgment as to its security deposit; and Judge Bottinelli
erred in dismissing its claims without a trial. We affirm.
SpaceAge moved for summary judgment on its claim that it was owed a
security deposit. In support of the motion, defendant certified that the $50,000
check from SpaceAge to Viktoriya in December 2009 was intended to cover
A-2156-21 122 eight months of rent at $5,000 per month, and $10,000 as a security deposit. He
stated there was no lease but a draft lease included reference to a $10,000
security deposit. He certified that after he purchased the units from Viktoriya
in May 2011, she never refunded the security deposit to SpaceAge.
In opposition to the motion, Viktoriya certified that SpaceAge did not pay
her a security deposit. She alleged that a lease was signed, though not the draft
document proffered by defendant, and it omitted any security deposit. The
record on appeal does not include the signed lease.
After argument, the court noted the draft lease agreement and found a
question of fact as to whether the parties intended to include a security deposit
in their arrangement. The court further found a question of fact as to whether
the security deposit was ever paid to Viktoriya. As a result, the court denied the
motion for summary judgment.
In reviewing the order under the standard articulated above, we are
satisfied the court correctly denied the summary judgment motion. There were
numerous disputed facts as to the nature of the parties' and Victoriya's landlord -
tenant relationship, including whether any security deposit was due or paid. The
draft lease included in the record, which called for a security deposit, was
unsigned. Viktoriya alleged that a different lease governed their relationship
A-2156-21 123 and it did not include a security deposit. The December 2009 check, while
including reference to both a security deposit and rental payment in the memo
line, did not conclusively prove that such a payment was owed.
SpaceAge next contends Judge Bottinelli did not adjudicate this security
deposit claim in his FJOD opinion and ignored relevant evidence on this claim
that was affirmatively presented at trial.
During the trial, counsel for SpaceAge and defendant presented testimony
about each of SpaceAge's claims, including plaintiff's and Viktoriya's alleged
theft of petty cash, the payment of benefits to plaintiff and Viktoriya, conversion
of the computer equipment, trade libel, and false representation, along with
defendant's testimony about the office rental and excessive rental rate and his
allegations of trade libel.
Judge Bottinelli's opinion explicitly acknowledged the SpaceAge claims.
He commented on the credibility of both parties, finding plaintiff's testimony
was "much more credible than that of her husband" because although she
"fabricated information and redacted documents," she "admitted when she had
been wrong" and was not evasive. In contrast, defendant "repeatedly told
untruths during this trial," "refused to abide by [c]ourt [o]rders," and made
"outrageous allegations about judges, professionals[,] and others on social
A-2156-21 124 media." The judge found defendant "was lying, and he full well understood that
he was lying, and he did so without hesitancy."
The judge's opinion expressly rejected certain of the SpaceAge claims:
He found no evidence that Viktoriya breached any agreement with SpaceAge
regarding its payment of her expenses; and he dismissed SpaceAge's claim that
plaintiff did not return a computer, finding that she denied these claims and there
was no proof of loss or proof of value. The judge summarily dismissed the
remaining SpaceAge claims, including the claims relating to petty cash, trade
libel, false representation, and the security deposit.
The record demonstrates that SpaceAge was given the opportunity to
present its claims and related evidence. Counsel for SpaceAge was permitted to
present evidence about petty cash, health insurance coverage for plaintiff and
Viktoriya, the purchase of the computer for plaintiff, plaintiff's email to the
SpaceAge employees, plaintiff's listing of a particular individual as a job
reference, and SpaceAge's rental of the office units. Judge Bottinelli ultimately
addressed and resolved these claims in the FJOD opinion, concluding that each
should be dismissed. SpaceAge was accorded due process as it had "an
opportunity to be heard at a meaningful time and in a meaningful manner." Doe
v. Poritz, 142 N.J. 1, 106 (1995).
A-2156-21 125 Under our deferential standard, we are satisfied the judge's factual
findings were supported by the evidence in the record and he correctly dismissed
each of SpaceAge's claims. Balducci v. Cige, 240 N.J. 574, 594-95 (2020).
Despite being permitted the opportunity to do so, SpaceAge failed to
prove its claims. For example, as the judge found, there was no testimony that
Viktoriya breached any agreement with SpaceAge regarding her expenses, or
that plaintiff failed to return the computer. On the remaining claims, SpaceAge
presented only scant evidence. The testimony regarding petty cash, trade libel,
false representation, and the rental arrangement was conflicting and the judge's
determination that such testimony did not prove SpaceAge's causes of action is
entitled to deference. Defendant did not even discuss the security deposit claim
at trial, despite his lengthy testimony about the office rental. The judge
reasonably dismissed all of these claims, particularly in light of his finding that
plaintiff's testimony was more credible than defendant's.
To the extent we have not addressed any remaining claims asserted by
defendant or SpaceAge, we have determined they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2156-21 126
Related
Cite This Page — Counsel Stack
Alina Myronova v. Surender Malhan, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alina-myronova-v-surender-malhan-njsuperctappdiv-2025.