ANDREW FLOCKHART VS. KAREN FLOCKHART (FM-19-0224-13, SUSSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 24, 2019
• Docket: A-1578-16T2
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1578-16T2

ANDREW FLOCKHART,

Plaintiff-Respondent,

v.

KAREN FLOCKHART,

Defendant-Appellant. _______________________________

Argued January 15, 2019 – Decided May 24, 2019

Before Judges Rothstadt and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-0224-13.

Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, PC, attorneys; Bonnie C. Frost, of counsel and on the briefs; Ivette R. Alvarez, on the briefs).

James P. Yudes argued the cause for respondent (James P. Yudes, PC, attorneys; James P. Yudes, of counsel; Elsie Gonzalez, on the briefs).

PER CURIAM Defendant Karen Flockhart appeals and plaintiff Andrew Flockhart cross-

appeals from their judgment of divorce (JOD) that the Family Part entered after

a twelve-day trial. The JOD was accompanied by a forty-seven page decision

in which the trial court set forth the reasons for each of its determinations. In

their appeals, one or both of the parties challenge the court's rulings on alimony,

custody, child support, and equitable distribution (ED). They also challenge the

trial court's supplemental order on counsel fees and another order denying in

part their motions for reconsideration and awarding additional counsel fees. For

the reasons that follow, we affirm in part and vacate and remand in part for

reconsideration of child support and one aspect of ED.

I.

The parties met in 1987 and married in 1995. They had three children: a

daughter born in 1998; a son, born in 2000; and another son, born in 2004. The

parties separated in 2012, and plaintiff filed for divorce in November of that

year.

Prior to the marriage, plaintiff founded a successful landscaping business.

By his twenty-first birthday, his business success enabled him to purchase a

home that he and defendant lived in prior to their marriage. In approximately

1992, plaintiff expanded into the vegetative waste industry by leasing a farm

A-1578-16T2 2 where he could turn his landscaping business' leaf waste into compost and brush

into mulch.

Defendant, who had a graphic design degree and was employed by a

company, helped plaintiff with his landscaping business. In 1998, before the

birth of their first child, defendant stopped working at the company where she

had been employed and did not work again until 2014, when she obtained part-

time employment working ten to fifteen hours per week. At the time of trial,

she worked approximately twenty-five hours per week as a receptionist for a

physical therapy practice and made thirteen dollars per hour.

After their first child was born, plaintiff sold his home, and the parties

purchased his parents' home, where the parties lived until 2003. In 2003, they

sold that home and purchased a new larger home. Later, as described below,

they sold that home and purchased a new larger house (Skyview Property).

In 1998, after defendant sold his landscaping business, the parties formed

AKF Properties (AKF), an entity that they owned in equal shares. AKF

purchased property at 20 Cotluss Road in Riverdale for $400,000, and rented

out space in one of the buildings located on the property. Plaintiff used the

money from the sale of his landscaping business and proceeds from a loan to

A-1578-16T2 3 help purchase the Cotluss Road property and renovate the buildings on the

property.

Soon after forming AKF, plaintiff formed Riverdale Environmental

Recycling (RER) after representatives of the Borough of Riverdale approached

him about helping the municipality deal with its residents' vegetative waste.

RER was also owned by the parties in equal shares. RER leased property from

the borough where RER would accept vegetative waste brought by borough

residents, which RER would then process and sell as topsoil or mulch.

Eventually, the leased property was not sufficient, so plaintiff rented part of a

property on Clark Road in Wantage Township to process the vegetative waste,

which, in 2004, he purchased for $400,000 through a company he formed, named

Clark Road Realty, LLC (CRR). Plaintiff owned 100% of CRR.

Also in 2004, plaintiff formed another company, RER Supply, LLC

(RERS), this time with his mother who owned fifty-five percent while plaintiff

owned the remaining forty-five percent. Plaintiff's mother loaned the business

$200,000, which it used to purchase equipment, but there was no written

documentation of the loan.

In 2008, plaintiff acquired additional property for RER's business through

yet another company he formed. The new company, Riverdale Realty LLC (RR)

A-1578-16T2 4 purchased property at South Corporate Drive in Riverdale. Plaintiff owned

ninety percent of RR, and defendant owned ten percent.

By 2006, while the parties' various companies expanded, their marriage

began to unravel, especially after plaintiff admitted to having an affair.

Plaintiff's abuse of alcohol also contributed to the marriage's demise. In 2008,

plaintiff left the family home for three months. When he returned, he learned

that defendant was romantically involved with other men, causing additional

harm to the parties' relationship. The parties tried to address their issues through

counseling and the purchase of the Skyview Property. Neither effort helped

their situation. Alcohol abuse and violent behavior made matters worse. In

2012, plaintiff left the marital home, but the parties' relationship continued to

sour, giving rise to allegations of domestic violence and unsubstantiated

allegations of child abuse.

The parties' marital discord injured their relationships with their children.

Initially, after plaintiff left the marital home, he was seeing his sons regularly,

but saw his daughter only sporadically as she refused to communicate with him,

despite his sending several texts to her every day, to which she would not

respond. After plaintiff filed for divorce, he perceived that his children "started

to change the way they looked at [him], the way they acted toward [him]."

A-1578-16T2 5 During one episode of parenting time, plaintiff recalled that the children ran

away from his house and went back to defendant's house. Plaintiff believed

defendant was responsible for the change in his children's behavior towards him.

He claimed she prevented him from seeing the children, although they expressed

that they wanted very little to do with him.

Defendant denied preventing the children from visiting plaintiff,

explaining that it was difficult to get them to visit him. She also denied

disparaging plaintiff in the children's presence. However, according to

certifications defendant filed during the divorce, she stated that it was not her

responsibility to ensure that plaintiff had a healthy relationship with the

children, and that a relationship with their father would be harmful to their

daughter and older son.

The marital discord significantly affected their older son. He began to

struggle in school and showed signs of depression. School officials arranged a

meeting with the parties and their parenting coordinator, where the school

officials raised concerns that the older son was self-medicating and told the

parties that they should focus on their son's well-being, not his grades. A month

later, after an incident at defendant's house, the older son moved in with

plaintiff, and his grades improved. However, when defendant and the parties'

A-1578-16T2 6 daughter began sending him frequent text messages, he got upset and his grades

fell again.

The parties' deteriorating relationship significantly affected their ability

to communicate with each other about the children. A court order in 2012

initially prevented plaintiff from having any contact with defendant for a

significant time. According to defendant at trial, she had not spoken regularly

with plaintiff in years, which made communicating very difficult. Instead, they

corresponded via text or email, but even that was intermittent. Defendant

complained that plaintiff did not consistently tell her about the older son's

doctor's appointments and school reports. She stated that the lack of

communication made it hard on the children and that she wanted better

communication.

At the time of trial, the older son continued to live with plaintiff and

plaintiff wished to maintain that arrangement. The younger son lived with

defendant and plaintiff saw him every other weekend and one day during the

week. Plaintiff realized that he could not force his daughter to have a

relationship with him and cut back on his attempts to interact with her.

During the marriage, the family lived a very comfortable lifestyle and, in

addition to the businesses, acquired various assets. Their marital home, the

A-1578-16T2 7 Skyview Property, was eventually listed for sale at approximately $900,000, but

was encumbered by a mortgage in almost the same amount. They also owned a

timeshare in Florida, which was also encumbered by a mortgage in the amount

of $254,385.24 at the time of trial, and they owned a lot on Lake Mohawk that

was valued at $6500.

In addition to real property, plaintiff claimed he left $100,000 in cash in a

safe in the basement, which he later admitted was $60,000 in 2012, and believed

defendant had taken that money. Although defendant initially said that she did

not take any money from the basement safe, she later admitted taking $7000 to

$8000 from the safe for a trip. Defendant claimed that plaintiff took her

engagement and wedding rings from her personal safe and took a Mercedes S550

owned by AKF out of the garage while she was away.

Plaintiff filed his complaint on November 21, 2012, and defendant filed

an answer and counterclaim on February 5, 2013. For the next approximately

four years, the parties engaged in contentious motion practice, with the trial

court entering numerous orders finding defendant in violation of litigant's rights

by not complying with court orders, including those directing her to cooperate

with the court-appointed parenting coordinator and with the sale of the Skyview

Property. In several of the orders, the court awarded plaintiff counsel fees. A

A-1578-16T2 8 September 4, 2015 order barred defendant from presenting an expert witness

because she failed to serve any expert reports.

At trial, in addition to the parties, various fact witnesses testified. Plaintiff

also produced expert witnesses. A former friend of both parties testified on

behalf of plaintiff. She described herself as having once been one of defendant's

best friends. She primarily testified about her observations of defendant

interfering with plaintiff's relationship with the children, including involving

them in the litigation and coaching them as what to discuss with experts during

evaluations. In addition, she shared her knowledge of defendant's extramarital

affairs, her attempts to stall the sale of the marital home, and defendant's

admission that she took the $60,000 from the basement safe. The friend also

testified about defendant's alleged failure to properly parent her children,

including allowing the parties' daughter to post inappropriate photos on the

Internet and to have parties with alcohol at her home.

Plaintiff also presented the testimony of the court-appointed parenting

coordinator, who appeared as a neutral third party. She described her meetings

with and evaluations of the parties as well as her attempt to work with them to

encourage the children to maintain good relationships with their parents. She

also described her contact with and assessment of the children.

A-1578-16T2 9 The parenting coordinator was concerned that defendant was causing the

children's alienation from plaintiff. She observed that the children were unable

to give concrete reasons for not wanting to see their father and that they repeated

things that defendant had told the parenting coordinator, using the exact same

words. She testified that she witnessed defendant engage the children in

negative conversations about plaintiff and that she found that defendant would

not follow the parenting coordinator's recommendations.

Plaintiff also called as expert witnesses a certified public account (CPA),

who evaluated the businesses and prepared a "cash flow" analysis of plaintiff's

income, and two real estate appraisers, one for the real estate the parties owned

and the other for the timeshare.

The CPA conducted an evaluation of RER and RERS, which he stated

were "intimately intertwined," requiring that they be valued jointly. He

concluded that as of March 14, 2012—when plaintiff's mother gave him her

share of RERS—their value was $830,000, but as of the date of the divorce

complaint, it was $656,000,1 due to a significant decline in income in 2012,

1 On cross-examination, the CPA testified, over plaintiff's objection, that he met with defendant's valuation expert, who did not testify at trial, and they agreed that RERS and RER should be valued jointly at $600,000. A-1578-16T2 10 attributable to a poor economy and the need to purchase new equipment to

maintain operations.

In his cash flow analysis, the CPA determined that plaintiff's average pre-

tax cash flow for 2011 through 2013 was $331,182, and his average post-tax

cash flow was $289,434. In 2013, his monthly post-tax cash flow was $17,421.

Plaintiff's monthly payments for defendant and the children totaled $18,661,

creating a monthly deficit of $1240 without considering any of plaintiff's own

expenses, which required him to borrow money from his companies.

As of November 21, 2012, plaintiff had borrowed approximately $37,000

from the companies in the form of a shareholder loan, but by December 31,

2014, the amount had increased to $445,817, the majority of which was

borrowed to pay for the divorce, plaintiff's pendente lite support obligations, and

his own living expenses. The companies obtained that money from a line of

credit that was completely drawn down. Plaintiff was individually liable to the

companies for the loan, and his payments covered interest due to the bank. If

plaintiff did not pay the loan, that money would be treated as taxable income.

The CPA explained that he treated plaintiff's mother's $200,000 loan to the

company as income to plaintiff because the money did not go directly into one

of the companies, which increased his cash flow.

A-1578-16T2 11 As to the value of the real estate, plaintiff presented a licensed real estate

appraiser, who was qualified as an expert in commercial real estate valuation.

He appraised the properties located at Clark Road, Cotluss Road, and South

Corporate Drive.

Using the sales comparison approach, he valued Clark Road at $600,000.

That property was encumbered by a $200,000 interest-only mortgage. He valued

Cotluss Road using both a sales comparison approach and the income approach,

and concluded the property should be valued at $1,335,000. The balance of the

mortgage encumbering that property was $824,969 when the divorce complaint

was filed, and $779,859.20 at the time of trial. The expert appraised South

Corporate Drive at $934,000. The property had a mortgage of $599,979.06 at

the time of the divorce complaint and $591,231.65 at the time of trial .2

A different expert, a certified residential appraiser who was qualified as

an expert in appraising timeshare properties, observed that it was "almost

impossible" for an individual to sell a timeshare. He appraised the parties' five-

week interest in the Florida timeshare at $45,000 based on three comparable

sales. The timeshare had a mortgage of $254,385.24 at the time of trial.

2 As discussed below, at trial, the parties entered various stipulations that included their agreements as to the amount of the balance of each mortgage. A-1578-16T2 12 Defendant presented five fact witnesses who offered testimony about the

parties' relationship and their relationships with their children, including the

parties' daughter, defendant's father and sister, and a family friend. Another

witness explained that he was friends with the family, had purchased plaintiff's

landscaping business, and worked with plaintiff in RER. His testimony focused

on the manner in which plaintiff maintained two sets of accounting records, one

for customers who paid using credit cards and the other for those who paid in

cash.

On September 29, 2016, the court entered a dual judgment of divorce,

accompanied by its comprehensive statement of reasons in which it made

detailed findings as to all of the statutory factors relating to each of its decisions.

The court first granted plaintiff sole legal custody of the two sons with

physical custody of the older son to plaintiff, and physical custody of the

younger son to defendant. The court noted that it did not transfer physical

custody of the younger son to plaintiff because plaintiff did not seek his custody.

The court emancipated the parties' daughter effective September 1, 2016, but

left open the possibility that she could be unemancipated if she attended college.

Next, the trial court addressed support. Using the court's guidelines for

child support, it ordered plaintiff to pay defendant $224 per week in child

A-1578-16T2 13 support for the younger son and defendant to pay plaintiff $380 per week in

support for their older son. Thus, defendant would pay $156 per week in net

child support to plaintiff until the older son was emancipated, after which time

plaintiff would pay defendant $224 per week. The court explained that since

this was the first time a support award was being ordered by the court for the

children, the court "used the [guidelines'] teen adjustment because [the younger

son was] currently over twelve years old."

After establishing the child support amount, the court addressed alimony.

The court ordered plaintiff to pay defendant $2500 per week in alimony until

the older son was emancipated, at which time the payment would be reduced to

$1950 per week. The alimony obligation would last for seventeen years and five

months, the length of the marriage.

The court turned to the Mallamo3 adjustments sought by plaintiff and

made detailed findings that led to its conclusion that plaintiff was entitled to a

credit in the amount of $155,290 for overpayment of support pendente lite. The

court offset that amount by $25,085.09, which it found plaintiff was obligated

to pay pendente lite for certain expenses, but failed to do so.

3 Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). A-1578-16T2 14 The trial court addressed ED by incorporating many of the same findings

it stated when discussing support. The court considered the establishment and

evolution of the parties' businesses and the acquisitions of their real estate and

concluded that the assets should be apportioned equally between the parties.

After accounting for various credits, the court awarded plaintiff the RER

companies and the Clark Road, South Corporate Drive, and Florida timeshare

properties. It awarded defendant the Cotluss Road property, which had equity

of almost $510,030.97, and the Lake Mohawk lot. The court also ordered

plaintiff to pay defendant $161,039.10 to make up the remainder of what she

was due under ED.

Excluded from the calculation was the marital home. The court noted that

neither party presented any expert testimony as to the Skyview Property's value.

It ordered defendant to vacate the marital home so that it could be sold without

interference, and granted plaintiff a limited power of attorney to have it listed

and sold. The court required that upon sale, plaintiff was to pay from the

proceeds the balance of the mortgage at the time the complaint was filed and

then equally share with defendant any remaining proceeds.

The JOD directed the parties to file their applications for counsel fees

post-judgment. However, as part of the JOD, the trial court required defendant

A-1578-16T2 15 to reimburse plaintiff for $15,500.97 in fees he had paid for forensic accountants

on her behalf, because they never produced reports.

After the submissions were made, on November 17, 2016, the court issued

an order supported by a written decision that required defendant to pay plaintiff

$2000 in attorneys' fees related to prior violations of litigant's rights and $2500

in expert fees incurred for the parenting coordinator. As indicated by the court,

"this Order in conjunction with the Judgment of Divorce constitute a final

Judgment effective the date of this Order."

Both parties filed motions for reconsideration of the JOD, including

counsel fees. On December 2, 2016, the court entered an order partially granting

and partially denying the parties' motions for reconsideration. The court

awarded plaintiff an additional $1000 in attorneys' fees for defendant's failure

to comply with the divorce judgment. These appeals followed.

II.

In our review, we defer to a trial court's factual findings, which "are

binding on appeal when supported by adequate, substantial, credible evidence."

Cesare v. Cesare, 154 N.J. 394, 412 (1998). We "do not weigh the evidence,

assess the credibility of witnesses, or make conclusions about the evidence."

Slutsky v. Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017) (quoting

A-1578-16T2 16 Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App.

Div. 2008)). This is particularly so in divorce proceedings because they

"involve[] the Family Part's 'special jurisdiction and expertise in family matters,'

which often requires the exercise of reasoned discretion." Ibid. (quoting Cesare,

154 N.J. at 413).

Our "[d]eference is especially appropriate when the evidence is largely

testimonial and involves questions of credibility." Ibid. (alteration in original)

(quoting Cesare, 154 N.J. at 412). "Because a trial court 'hears the case, sees

and observes the witnesses, [and] hears them testify, it has a better perspective

than a reviewing court in evaluating the veracity of witnesses.'" Cesare, 154

N.J. at 412 (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33

(1988)). Thus, we will not disturb a trial court's factual findings unless we are

"convinced that they are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.

474, 484 (1974)).

III.

We first address defendant's challenge to the trial court's custody

determination. On appeal, she argues that the court's custody arrangement with

A-1578-16T2 17 respect to the younger son was not in his best interests and was unworkable

because although she is his custodial parent, she "is foreclosed from information

or decision making regarding [his] health, education and welfare." She asserts

that the court should have awarded joint legal custody because there was

insufficient evidence to support its findings that she and plaintiff were incapable

of communicating and cooperating with respect to the children and that she was

attempting to alienate them from plaintiff. Defendant also argues that the court

should have, sua sponte, interviewed both sons regarding their custodial

preferences. We disagree.

In its written decision, the court reviewed each of the statutory factors

under N.J.S.A. 9:2-4(c) relating to custody and made specific findings about the

parties' relationship with their children and their ability to parent together. The

court recognized that plaintiff and defendant had at one time agreed to a

parenting plan when the divorce complaint was filed, and although it was never

implemented, the court found that the agreement was evidence of each parent's

willingness to accept custody. It found that plaintiff and defendant were unable

to cooperate and that forcing them to communicate would be counterproductive.

The court ruled out an award of joint legal custody because it would not

be in the best interests of the children. It also found that defendant "conduct[ed]

A-1578-16T2 18 a malicious campaign" to alienate the children from plaintiff and that her

"alienation tactics casts a giant shadow over the whole custody assessment ."

According to the trial court, since the parties' separation, defendant "perpetuated

in the children's minds th[e] image of their father as a violent uncontrolled

person," which was unsupported by the evidence.

Turning to the children's preferences, the court noted that the daughter did

not want to see her father, the older son chose to live with his father , and as to

the youngest child, he was living with his mother and having alternate weekends

and a mid-week visit with his father without any problems.

We review a custody award under an abuse of discretion standard, giving

deference to the court's decision provided that it is supported by "adequate,

substantial, credible evidence" in the record. Cesare, 154 N.J. at 412. "[T]he

decision concerning the type of custody arrangement [is left] to the sound

discretion of the trial court[.]" Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App.

Div. 2001) (second and third alteration in original) (quoting Pascale v. Pascale,

140 N.J. 583, 611 (1995)). Therefore, "the opinion of the trial judge in child

custody matters is given great weight on appeal." Terry v. Terry, 270 N.J. Super.

105, 118 (App. Div. 1994). Nevertheless, "we must evaluate that opinion by

A-1578-16T2 19 considering the statutory declared public policy and criteria which a trial court

must consider[.]" Ibid.

Under the statutory factors, courts have discretion to order joint legal and

physical custody, sole custody to one parent with parenting time for the other

parent, or "[a]ny other custody arrangement as the court may determine to be in

the best interests of the child." N.J.S.A. 9:2-4(a) to (c). The "paramount

consideration" in determining custody "is to foster the best interests of the

child." Beck v. Beck, 86 N.J. 480, 497 (1981). We generally "leave the decision

concerning the type of custody arrangement to the sound discretion of the trial

court[.]" Pascale, 140 N.J. at 611.

Joint custody requires that the parents "exhibit a potential for cooperation

in matters of child rearing." Beck, 86 N.J. at 498. The parents do not need to

have an "amicable relationship," but must "be able to isolate their personal

conflicts from their roles as parents" and ensure "that the children be spared

whatever resentments and rancor the parents may harbor." Ibid.

Our review of the record demonstrates that although not a usual result, the

evidence supports the trial court's decision awarding plaintiff legal custody of

the parties' sons and there is nothing in the record to indicate that the

arrangement was contrary to their best interests. The court conducted an

A-1578-16T2 20 extensive evaluation of the applicable factors set forth in N.J.S.A. 9:2-4,

emphasizing the discord between the parties and defendant's attempts to alienate

the children from plaintiff, which the court found prevented them from being

able to maintain joint custody of their children. It made specific credibility

findings and rejected defendant's denials and explanations for her conduct that

was described in detail by other witnesses, including the parenting coordinator.

We reject defendant's contention that the trial court should not have

reached its determination without interviewing the parties' sons. While it is true

that when making a custody determination, "the preference of the children of

'sufficient age and capacity' must be accorded 'due weight,'" Beck, 86 N.J. at

501 (quoting N.J.S.A. 9:2-4), we discern no abuse in the court's discretion in not

doing so here. See D.A. v. R.C., 438 N.J. Super. 431, 455 (App. Div. 2014)

("the decision whether to interview a child in a contested custody case is left to

the sound discretion of the trial judge"). In this case, neither party asked for the

interviews and there was no question as to the sons' preferences, as the trial court

found that they "made their choices known" through their actions that included

the older son leaving defendant's home to live with plaintiff, where he resided

for over a year and a half before the trial, and the younger son living with

defendant and visiting with plaintiff without incident.

A-1578-16T2 21 IV.

We turn our attention to the issues raised about the court's child support

award. Defendant contends that the court erred by calculating child support

solely with reference to the Child Support Guidelines (Guidelines), Pressler &

Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A,

www.gannlaw.com (2019), even though the parties' combined net income was

more than $187,200, the highest amount to which the Guidelines apply. Plaintiff

acknowledges that the parties had a net combined income of more than

$187,200, but argues that defendant waived this argument because she did no t

raise it at trial and, in any event, the court had discretion not to make a

supplemental award above the amount contemplated by the Guidelines. We

disagree with plaintiff.

A trial court has "substantial discretion" when making a child support

award. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting

Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001)). The court,

however, must exercise its discretion in accordance with the law. Ibid. "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." Ibid. (quoting Foust, 340 N.J. Super.

A-1578-16T2 22 at 315-16). "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.'" Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171

N.J. 561, 571 (2002)).

Absent limited circumstances, parties by their conduct may not waive

their children's right to support. "The right to child support belongs to the child

and 'cannot be waived by the custodial parent.'" Pascale, 140 N.J. at 591

(quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)). In

other words, "the responsibility to support runs from parent to child, not parent

to parent[.]" Id. at 592. A court must base its child support decision on an

evaluation of the child's needs and interests, not on the parents' conduct. Id. at

591.

As already noted, the trial court conducted a detailed analysis of the

statutory factors relating to an award of child support under N.J.S.A. 2A:34-23.

However, it did not address the Guidelines' requirements for parents with a

combined net income of more than $187,200. When confronted by an above-

the-Guidelines income, a "court shall apply the [G]uidelines up to $187,200 and

supplement the [G]uidelines-based award with a discretionary amount based on

the remaining family income (i.e., income in excess of $187,200) and the factors

A-1578-16T2 23 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,

www.gannlaw.com (2019); see also Caplan v. Caplan, 182 N.J. 250, 271 (2005).

In considering the above-Guidelines amount, the law calls for the court to

"consider the factors set forth in N.J.S.A. 2A:34-23(a) to determine the amount

of the supplemental support award and then combine that amount with the

[G]uidelines-based award." Caplan, 182 N.J. at 271. "'[T]he dominant guideline

for consideration is the reasonable needs of the children, which must be

addressed in the context of the standard of living of the parties. The needs of

the children must be the centerpiece of any relevant analysis.'" Strahan v.

Strahan, 402 N.J. Super. 298, 307 (App. Div. 2008) (quoting Isaacson v.

Isaacson, 348 N.J. Super. 560, 581 (App. Div. 2002)).

Here, the court did not apply the law in its calculation of child support. It

neither calculated a supplemental amount for support nor did it explain why it

did not follow the requirements for high-income families. Under these

circumstances, we are constrained to remand for reconsideration of child support

to determine the amount of a supplemental award, if any. See Elrom v. Elrom,

439 N.J. Super. 424, 443 (App. Div. 2015).

A-1578-16T2 24 V.

Next, we address both parties' challenges to the trial court's alimony

determinations. Defendant argues that the court erred by ordering a reduction

in her alimony after their older son is emancipated and in relying upon plaintiff's

CIS for the parties' marital lifestyle. Plaintiff argues on cross-appeal that the

court erred because it failed to consider the income defendant will receive from

the Cotluss Road property, which it awarded to her in ED. We find no merit to

these contentions.

In determining an award of alimony, the trial court considered the factors

under N.J.S.A. 2A:34-23B and made specific findings as to each. While

addressing alimony, the trial court also made specific credibility findings. The

court found that defendant had "credibility issues throughout the entire trial." It

stated that "[t]here were constant issues of [defendant] testifying one way and

then being impeached by her own deposition testimony when she was being

cross examined." In addition, "[s]he could not remember virtually anything that

had occurred as much as four or five years previously when questioned by

plaintiff's attorney. Yet on direct testimony she was able to describe in great

detail things from twenty years ago." The court devoted two pages to addressing

defendant's credibility, giving examples and adding that it "could go on for

A-1578-16T2 25 pages about the gaps in [defendant's] credibility . . . ." For these reasons, when

addressing the parties' standard of living, the court gave "little credence" to the

information provided by defendant. For instance, she testified that her credit

card expenses were $5000 to $7000 per month, but the billing statements showed

expenses closer to $4000. The court therefore relied on plaintiff's CIS for the

standard of living.

The court recognized that the various businesses and properties it

allocated through ED "might be liquidated or sold to provide investment income

going forward." The court, however, "expect[ed] that much of what is liquidated

will be exhausted on attorneys' fees and experts' fees."

In its calculation of alimony, the trial court imputed $300,000 in income

to plaintiff, and $27,040 to defendant. As to defendant, the court found that she

was underemployed, "not really gainfully employed," while working twenty-

five hours per week, making $13 per hour. Nevertheless, it used that hourly rate

for a forty-hour week, fifty-two weeks per year, to establish her imputed income.

In determining plaintiff's income, the court found that the CPA

"understated" plaintiff's average income at $230,000. The court found that

although plaintiff's average income on his 1040 forms for 2012 to 2014 was

$226,280, the businesses also paid personal expenses, and he might have

A-1578-16T2 26 received unreported income as cash. The court explained that plaintiff's initial

CIS pegged the family's marital expenses at $17,218 per month, equal to

$206,616 per year, which the court determined would require income close to

$300,000 per year. The court credited plaintiff's and the CPA's testimony that

the companies had little debt prior to the pendente lite order, meaning that

plaintiff's income was sufficient to cover the marital expenses. Based on that

reasoning, which was supported by the CPA's cash flow analysis, the court

imputed income of $300,000 to plaintiff.

The court concluded that defendant needed alimony and plaintiff had the

ability to pay. It ordered plaintiff to pay defendant $2500 per week in alimony,

equal to $130,000 per year. The court explained that after combining the

alimony payment with defendant's imputed income, accounting for taxes and

child support, defendant would have net income of $2044 per week, which was

equal to $8857.33 per month or $106,288 per year. Comparing that sum with

her monthly expenses of $9515 would leave her "short" $657.67 per month.

With respect to plaintiff, his net income, after accounting for child support and

alimony payments, would be $2316 per week, totaling $10,036 per month or

$120,432 per year. Comparing that amount with his monthly expenses of

A-1578-16T2 27 $10,691 would leave plaintiff "short" $655 per month. The court advised that it

did "the best it [could] to place the parties in equipoise."

The court further explained that "[i]t would be inequitable for [defendant]

to continue to receive $2500 once [the older son] is emancipated . . . ." At that

point, defendant's weekly net income would be $2424 per week, or $10,504 per

month, almost $1000 more than her expenses. Thus, the court ordered a

reduction in the weekly alimony payment to $1950 after the older son's

emancipation. At that time, defendant's weekly net income would be $2123,

equivalent to almost $9200 per month, leaving her "short" $315 per month.

Plaintiff, by contrast, would be "short" $275. Again, the court explained that

the alimony reduction would put the parties "in substantial equipoise." Thus,

accounting for alimony and child support, plaintiff was obligated to pay

defendant $2344 per week until their older son was emancipated. After his

emancipation, plaintiff's alimony payment would be reduced to $1950 per week,

plus $284 per week in child support for the younger son, for a combined payment

of $2234 per week. The court determined that defendant was entitled to alimony

for a length of time equal to the duration of the marriage, seventeen years and

five months, beginning at the time of the first pendente lite payment in February

2013 and continuing through July 2030.

A-1578-16T2 28 In our review of an alimony award, we defer to a trial court's findings as

long as they are supported by substantial credible evidence in the record. Reid

v. Reid, 310 N.J. Super. 12, 22 (App. Div. 1998). Applying that standard here,

we find no reason to disturb the trial court's alimony award.

"Alimony relates to support and standard of living; it involves the quality

of economic life to which one spouse is entitled, which then becomes the

obligation of the other." Gnall v. Gnall, 222 N.J. 414, 429 (2015). "The basic

purpose of alimony is the continuation of the standard of living enjoyed by the

parties prior to their separation. The supporting spouse's obligation is set at a

level that will maintain that standard." Innes v. Innes, 117 N.J. 496, 503 (1990)

(citation omitted).

Alimony awards are governed by N.J.S.A. 2A:34-23(b), which sets forth

a list of non-exhaustive factors for a court to consider. If the court determines

that one factor is more or less relevant than the other factors, or that one factor

should be elevated over another factor, the court must "make specific written

findings of fact and conclusions of law" in that regard. N.J.S.A. 2A:34-23(b).

Initially, as we observed earlier, the trial court here conducted an

exhaustive analysis of the statutory factors. Although defendant argues that the

trial court did not properly evaluate the parties' standard of living on appeal, she

A-1578-16T2 29 concedes that the $2500 initial alimony award is appropriate. In doing so, she

also admits that after her child support obligation for her older son ends, the

alimony amount will exceed her requirements for support.

In any event, as to defendant's challenge to the trial court's reliance upon

plaintiff's CIS, we are satisfied that court fully explained that it relied on

plaintiff's CIS because of defendant's credibility issues. Indeed, the court found

that defendant overstated her credit card expenses in an apparent attempt to

overstate the marital standard of living, which was already substantial.

Turning to plaintiff's contention that the court erred by failing to consider

in its alimony calculation the income that defendant would receive from tenants

to the Cotluss Road property, we conclude it is unsupported by any evidence

that such income existed. Plaintiff relies exclusively on his expert's appraisal,

arguing that it shows that the Cotluss Road property generates approximately

$164,169 in rental income per year, requires $51,541 to maintain and operate,

and therefore has a net operating income of over $104,000. After accounting

for the approximately $63,401 per year in mortgage payments, plaintiff contends

that defendant should have a net income from the property of just over $41,018.

Plaintiff first raised this issue in his motion for reconsideration, which the

court rejected. In its oral decision, the court explained that at trial, plaintiff

A-1578-16T2 30 "minimized the income received from the property." For instance, plaintiff's

expert "indicated the cash flow income [from the property] was de minimis."

Moreover, citing Steneken v. Steneken, 183 N.J. 290 (2005), the trial court noted

that because plaintiff's real estate appraiser used an income approach to appraise

the property, there was a question "whether income used in calculating a value

of a property for equitable distribution should be used again in a calculation of

alimony." The court concluded:

If, in fact, it is shown down the road that defendant has income from her operation of . . . Cotluss Road, it may be a basis for a prayer for modification, but the Court actually does not expect her to operate the property, but expects that she's going to sell it. Even if she doesn't, though, it's premature.

We agree with the trial court's conclusion. Moreover, we observe that

plaintiff's expert's cash flow analysis stated that plaintiff had no net income from

the property in 2012 and 2013. The expert explained that there was income in

2011, but it was due primarily to pre-existing cash in the bank and money

borrowed when the mortgage was refinanced, not from rental income. The

A-1578-16T2 31 testimony of plaintiff's own expert established that the Cotluss Road property

generated little or no rental income. 4

VI.

We next focus on the parties' challenges to the trial court's ED

determinations. Defendant argues that the court erred by: (1) denying her the

opportunity to present expert testimony on the valuation of the businesses; (2)

awarding plaintiff Mallamo credits for pendente lite support; (3) requiring her

to assume any of the debt associated with the timeshare in Florida; and (4)

finding that she took $60,000 out of the basement safe. On cross -appeal,

plaintiff argues that the court erred by failing to provide him with a credit for

his pay down of the mortgage on the Cotluss Road property. He also argues that

the court erred by failing to provide him with a credit for the cost of repairs to

the marital home and failing to require defendant to share any loss from the sale

of the house.

4 In the supplemental appendix plaintiff filed with his reply brief, he i ncludes post-trial certifications defendant filed with the trial court in which she stated that the Cotluss Road property generated income. Defendant, in her reply brief, argues that the property was in disrepair and that she had to expend significant funds to upgrade it and to refinance the mortgage on the property as plaintiff requested; she includes in her supplemental appendix pictures of the property and invoices that were not part of the trial record. The arguments advanced in the parties' reply briefs are based on materials in the supplemental appendices that were not before the trial court; therefore, they are not considered on appeal. A-1578-16T2 32 A.

We begin our review of the ED award by addressing defendant's

contention about the trial court barring her from producing an expert. We

discern the following facts from the record.

On September 4, 2015, the court barred plaintiff from presenting a

forensic accountant. The court explained that it "reluctantly" entered the order

after "having given the defendant multiple opportunities to provide a valid

expert report on the issue of the business valuation only to have her present in

the summer of 2015 a document the [c]ourt concluded was nothing more than a

net opinion."5

The "multiple opportunities" began early in the matter. Throughout the

pendency of the matter, the trial court entered orders enabling plaintiff to pay

for an expert, as long as defendant retained an expert with courts approval. The

court made clear that defendant was free to retain an expert of her choosing, but

if she wanted plaintiff to advance sums for that purpose, she had to make

application to the court. Rather than follow the court's procedure, in 2013,

defendant chose to retain unilaterally her own forensic accountant, and paid him

5 Although defendant refers to the court's comment in her appellate brief, she does not set forth any argument about why the court was wrong, nor did she provide us with a copy of the report in her appendix. A-1578-16T2 33 a $5000 retainer. She then filed a motion seeking reimbursement from plaintiff,

which the court denied.

By May 2015, defendant did not serve an expert report. On May 3, 2015

and May 29, 2015, the court entered orders requiring defendant to provide

plaintiff with her expert's report by July 3, 2015. Despite having paid the expert

$9000, defendant retained a new expert to replace him and paid another $5000

retainer. Yet, defendant never produced a report.

Under these circumstances, we find no abuse of the trial court's discretion

in barring defendant from relying upon expert testimony. Pomerantz Paper

Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011). Even if we did, we

would find the error harmless. R. 2:10-2. The trial court's reliance on plaintiff's

experts was more prejudicial to plaintiff than defendant. If defendant was

correct, the court's reliance on plaintiff's experts' values resulted in plaintiff

receiving overvalued assets in satisfaction of his ED award. For example,

plaintiff's CPA valued the business at $656,000, which was higher than the value

purportedly ascribed by defendant's own expert. Similarly, if defendant is

correct that $1,335,000 was a "low-ball" value for Cotluss Road, that valuation

also benefitted her because the court awarded her that property in ED.

A-1578-16T2 34 Moreover, plaintiff has produced no evidence in the record that she suffered any

harm.

B.

Next, we address defendant's contention that the court erred by providing

plaintiff with a Mallamo credit for overpayment for pendente lite support. In

Mallamo, we explained that pendente lite support awards may be entered based

upon the parties' submissions without a plenary hearing, and are subject to

modification prior to final judgment based on the actual evidence adduced at

trial. Mallamo, 280 N.J. Super. at 12. Defendant claims that the court based its

decision to award plaintiff Mallamo credits on its misunderstanding of the

shareholder loans plaintiff took out from the businesses. We disagree.

Contrary to defendant's contention, the court did not base its decision on

the loans. In fact, in its decision, the court indicated that it was not awarding

plaintiff any credit for the shareholder loans specifically because it awarded him

Mallamo credits. Instead, under Mallamo, the court found that plaintiff had

overpaid defendant's pendente lite support based on the evidence adduced at trial

about the marital lifestyle, defendant's needs, and plaintiff's ability to pay. As

explained by plaintiff and his expert, the loans were taken so that plaintiff could

pay support for defendant and the children pendente lite, as well as to pay his

A-1578-16T2 35 own expenses, which included his legal fees. Defendant's arguments that

somehow the true nature of the loans were hidden or disguised are simply

without any merit.

C.

We turn to the parties' contentions about the errors made by the trial court

in distributing their property. At the outset, we acknowledge that "[a] Family

Part judge has broad discretion . . . in allocating assets subject to equitable

distribution." Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). We will

"reverse only if we find the trial judge clearly abused his or her discretion, such

as when the stated 'findings were mistaken[,] . . . the determination could not

reasonably have been reached on sufficient credible evidence present in the

record[,]' or the judge 'failed to consider all of the controlling legal

principles[.]'" Id. at 72 (alterations in original) (quoting Gonzalez-Posse v.

Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009)).

In its calculation of the properties' values, the trial court applied various

stipulations that the parties agreed to pre-trial. Those stipulations included the

following facts: the Lake Mohawk lot was worth $6500; the Florida timeshare

had a mortgage of $273,000 at the time of the complaint, which plaintiff paid

down to approximately $254,385 during litigation; the Clark Road property

A-1578-16T2 36 owned by CRR was encumbered by a $200,000 mortgage; the Cotluss Road

property had a mortgage of approximately $824,969 6 as of the date of the

complaint; and the South Corporate Drive property had a mortgage balance of

approximately $599,979 at the time of the complaint that plaintiff paid down

during litigation to $591,232.

In determining the properties' values, the court relied solely upon

plaintiff's experts' testimony as defendant did not present any evidence to refute

their opinions. As a result, it determined the timeshare's value was $45,000; the

Clark Road property's value was $400,000; the Cotluss Road property's was

$510,000; and South Corporate Drive was $934,000.

In determining the parties' businesses' values, the court accepted the

CPA's $656,000 valuation of the two RER companies, though the court found

the valuation "suspect" because it was done for negotiation purposes . The court

found it significant and "somewhat astounding" that on cross-examination,

defendant's counsel elicited testimony from the CPA that defendant's forensic

6 Plaintiff argued that he was entitled to a credit for paying down the mortgage during litigation, but the court did "not recall the evidence that support[ed] the pay down amount and the stipulation only ha[d] the amount of the mortgage as of the date of the complaint." A-1578-16T2 37 accountant, who did not testify, agreed with him that the RER companies should

be valued at $600,000.

The trial court calculated and applied credits to which plaintiff was

entitled before reaching a bottom line as to ED. Among them was the Mallamo

credit in the net amount of approximately $130,205, and a credit for $30,000 for

one-half the $60,000 the court found defendant took from the safe in the

basement. The court also credited plaintiff approximately $15,500 for money

he paid to the court-appointed forensic accountant on defendant's behalf and to

defendant's forensic accountant directly, neither of whom produced a report.

The court then apportioned all assets equally between the parties. It added

up the net value of all of the properties and businesses and divided that amount

in half, finding that each party was entitled to the equivalent of $953,275.95.

Next, it subtracted $100,000 from defendant's portion, representing her share of

the negative equity in the Florida timeshare. It further subtracted from her share

the various credits owed to plaintiff. Accounting for those adjustments,

defendant was due the equivalent of $677,570.07 in ED.

In a divorce judgment, courts are directed to "effectuate an [ED] of the

property, both real and personal, which was legally and beneficially acquired by

them or either of them during the marriage." Steneken, 183 N.J. at 299 (quoting

A-1578-16T2 38 Painter v. Painter, 65 N.J. 196, 205 (1974)). The goal of ED "is to effect a fair

and just division of marital [property]." Elrom, 439 N.J. Super. at 444

(alteration in original) (quoting Steneken, 183 N.J. at 299). Courts must

"identify the marital assets, determine the value of each asset, and then decide

'how such allocation can most equitably be made.'" Ibid. (quoting Rothman v.

Rothman, 65 N.J. 219, 232 (1974)).

Under N.J.S.A. 2A:34-23.1, courts are required to make "findings of fact

on the evidence relevant to all issues pertaining to asset eligibility or

ineligibility, asset valuation, and [ED]" after considering the factors delineated

in the statute.

Florida Timeshare

Defendant asserts that the court erred by awarding plaintiff the Florida

timeshare and requiring her to contribute $100,000 towards the outstanding

mortgage and at the same time depriving her of the use of the timeshare. We

disagree.

As already noted, before trial, the parties stipulated to the mortgage

balance on the timeshare. Plaintiff's expert appraised the five-week timeshare

interest at $45,000, so it had negative equity of $209,385.24. In its ED award,

the court calculated the equity in the timeshare by subtracting the amount of the

A-1578-16T2 39 outstanding mortgage from the value of the property, an approach that defendant

does not question for any of the other properties. The only difference was that

the mortgage on the timeshare was higher than its appraised value, so whichever

party received the timeshare was entitled to a credit from the other party for half

the amount of the negative equity. Because the court awarded the timeshare to

plaintiff, he was entitled to the credit.

We find no merit to defendant's contention that since she had to contribute

to the debt, she should be allowed to use the timeshare. First, at trial, plaintiff

testified to the significant expenses required to use the timeshare over and above

the mortgage payments, including approximately $20,000 per year in dues, plus

an additional $24,000 for activities and food. The fact that the mortgage was

netted out from the value and defendant had to share in the negative equity did

not give rise to a right to use the distributed property, especially without sharing

in its expenses. Second, and more important, "[i]t seems almost doctrinal that

the elimination of the source of strife and friction is to be sought by the judge in

devising the scheme of [equitable] distribution, and the financial affairs of the

parties should be separated as far as possible." Bowen v. Bowen, 96 N.J. 36, 41

(1984) (quoting Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443 (App. Div.

A-1578-16T2 40 1978)). Defendant's argument, if accepted, would insert plaintiff and defendant

back into each other's financial affairs, which ED was intended to eliminate.

The Safe

Defendant argues that there was insufficient evidence to support the

court's finding that she took $60,000 from the safe in the basement, and that the

court therefore erred by awarding plaintiff a credit of $30,000.

We conclude that defendant's argument is without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say,

the trial court did not abuse its discretion in relying upon the evidence it found

credible rather than accepting defendant's inconsistent explanations about the

money in the safe. The court's credibility determinations were supported by

credible evidence, and there is no basis to question them on appeal.

Cotluss Road Property Mortgage Pay Down

On cross-appeal, plaintiff contends that the court erred by not granting his

motion for reconsideration and amending the judgment to account for a

$60,057.23 reduction of the mortgage on the Cotluss Road property during

litigation. Plaintiff argued that he was entitled to a credit for paying down the

mortgage during litigation.

A-1578-16T2 41 The trial court did "not recall the evidence that supports the pay down

amount and [noted that] the stipulation only has the amount of the mortgage as

of the date of the complaint." The court also stated there was no testimony at

trial about the reduction, as confirmed by the fact that plaintiff, who now had

the benefit of the trial transcripts, could "not reference a transcript page with

any information regarding the issue." The court acknowledged that plaintiff

identified "footnote 12 of 18 footnotes on the case information statement [ t]o

reach his final number of $60,[0]57.23, [and that plaintiff] attaches a document

not part of the trial record," but refused to accept that as evidence adduced at

trial since there was no testimony about either.

A motion for reconsideration is governed by Rule 4:49-2 and "is a matter

within the sound discretion of the [c]ourt, to be exercised in the interest of

justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Litigants

"should not seek reconsideration merely because of dissatisfaction with a

decision of the [c]ourt." Ibid. Instead,

[r]econsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence. [Ibid.]

A-1578-16T2 42 On reconsideration, a litigant must specify "the matters or controlling

decisions which counsel believes the court has overlooked or as to which it has

erred[.]." R. 4:49-2. Reconsideration "cannot be used to expand the record . . ."

Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App.

Div. 2008). It is "designed to seek review of an order based on the evidence

[that was] before the court . . . , not to serve as a vehicle to introduce new

evidence in order to cure an inadequacy in the . . . record." Ibid. The court may

consider new evidence "in the interest of justice" only if it "could not have

[been] provided on the first application[.]" D'Atria, 242 N.J. Super. at 401.

We conclude that the trial court was incorrect in denying reconsideration.

During trial, plaintiff testified that as of September 2015, the mortgage on the

Cotluss Road property was $779,859.20, and referenced a bank statement

attached to his CIS that showed the amount outstanding on the loan. The amount

was $45,109.83 7 less than the stipulated amount that existed at the time plaintiff

7 Neither plaintiff's testimony, nor the CIS and bank statements, however, supported his claim that he paid the Cotluss Road mortgage down by $60,057.23. The evidence only supported a pay down amount of $45,109.83. Although plaintiff attempted to justify the higher amount by attaching the bank statement from July 2016, that document was not part of the record at trial. Plaintiff may not introduce new evidence on a motion for reconsideration that he could have introduced at trial. Asterbadi, 398 N.J. Super. at 310. A-1578-16T2 43 filed his complaint. Plaintiff further testified at trial, referring to his CIS,

including footnote twelve, that the property was worth approximately $555,141,

representing the $1,335,000 "appraised value of the property net of the mortgage

balance of seven seventy-nine eight fifty-nine." Thus, there was testimony

highlighting plaintiff's contention and documentary evidence, consisting of the

CIS and attached bank statement, which were admitted into evidence. Since the

court inadvertently overlooked the evidence, it should have granted that aspect

of plaintiff's motion for reconsideration. For that reason, we must remand the

matter for the court to recalculate the ED net amount owed by plaintiff to

defendant.

Repairs and Sale of Marital Home

Plaintiff contends that reconsideration was also improperly denied

because he was entitled to a credit for repairs to the marital home and that the

court should have apportioned half of any loss from the sale of the house to

defendant. On appeal, he claims, without any evidentiary support, that at the

recommendation of the realtor he spent $60,000 to repair the marital home .

Plaintiff also includes in his appendix the Closing Settlement Statement (HUD-

1 form) from the November 3, 2017 sale of the Skyview Property, indicating its

sale for $910,000.

A-1578-16T2 44 We conclude that plaintiff's contention that he is now entitled to repair

credits under the JOD is without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E). We only note that we agree with the trial

court that at trial, plaintiff "provide[d] no information" or "evidence" about any

repairs to the house. Moreover, at the time of reconsideration, there was no

evidence that any actual repairs had been made or were needed in order to sell

the house. His motion was inappropriate for reconsideration and premature.

VII.

Defendant and plaintiff both challenge the court's ruling on counsel fees.

Defendant argues that the court erred by failing to require plaintiff to pay her

legal fees and by ordering her to pay a portion of his legal fees due to her

violations of litigant's rights. Plaintiff argues on cross-appeal that the court

erred by failing to order defendant to pay him additional attorneys' fees because

of her bad faith litigation tactics throughout trial. We disagree with both parties'

contentions.

During the course of the litigation, the trial court entered orders at various

points requiring defendant to pay plaintiff's counsel fees totaling approximately

$4500, attributable to her failure to abide by court orders. On November 17,

A-1578-16T2 45 2016, the court entered a supplemental order on counsel fees that awarded

plaintiff $2000 in additional fees.

In the trial court's statement of reasons accompanying its November 16

order, the court explained that it was "unfortunate" that the parties incurred legal

fees approaching one million dollars, but "not surprising due to the level of

hostility." The court stated it was "loathe to shift fees based upon

unreasonableness of positions alone when both parties contributed to negotiation

stalemates." It rejected both parties' requests for additional attorneys' fees. It

found the award of any additional fees to either party "problematic" because

they both took unreasonable positions and would be "hard pressed" to pay their

own legal fees.

The court was also troubled by the "disparity in hours and fees

disproportionately heavy for plaintiff," observing that defendant retained four

different attorneys, and they billed for approximately 644 hours of time , while

plaintiff retained two attorneys, who billed approximately 2180 hours.

Defendant's attorneys charged in the range of $185 to $375 per hour, and

plaintiff's attorneys charged in the range of $250 to $550. Plaintiff incurred

approximately $740,000 in attorneys' fees, and defendant incurred

approximately $230,000. Plaintiff paid his attorneys almost $400,000, and

A-1578-16T2 46 would "struggle to pay [defendant's] Court ordered support and then the balance

of his fees." Defendant paid approximately $75,000, and would "struggle to pay

the unpaid portion of her fees and repay the loans" provided by her father.

However, the court found that defendant was partially responsible due to her

bad faith tactics, which included alienating the children, violating court orders,

and consistently retaining new counsel. The court consequently awarded

plaintiff an additional $2000 in counsel fees, and indicated that it would have

assessed more if plaintiff had been able to document his additional fees that were

attributable to defendant's conduct. The court also ordered defendant to pay

$2500 for the parenting coordinator's fees.

We defer to a trial court's determination on counsel fees in a matrimonial

action, and will only disturb it "on the 'rarest occasion,' and then only because

of clear abuse of discretion." Strahan, 402 N.J. Super. at 317 (quoting Rendine

v. Pantzer, 141 N.J. 292, 317 (1995)).

A trial court may award reasonable attorney's fees in actions in the Family

Part. N.J.S.A. 2A:34-23; R. 5:3-5(c); see also R. 4:42-9. When deciding if

attorney's fees should be awarded, "the court must look at the requesting party's

need, the other party's ability to pay and the good and bad faith of each party."

Heinl v. Heinl, 287 N.J. Super. 337, 349 (App. Div. 1996).

A-1578-16T2 47 Rule 5:3-5(c) also provides that:

the court should consider, in addition to the information required to be submitted pursuant to R[ule] 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

Applying these guiding principles, we conclude that the parties' arguments

about counsel fees are without merit and that the trial court did not abuse its

discretion in limiting the award of counsel fees in this matter, substantially for

the reasons expressed by the court in its statement of reasons.

VIII.

In sum, we affirm almost every aspect of the trial court's thoughtful

determinations. We are constrained to vacate its award of child support and

remand for recalculation using above-the-Guidelines considerations. We also

vacate the ED award of the net amount payable by plaintiff to defendant and

direct that the amount be reduced by one half of the reduction in the Cotluss

Road property or $22,555.

A-1578-16T2 48 Affirmed in part; vacated and remanded in part for further proceedings

consistent with our opinion. We do not retain jurisdiction.

A-1578-16T2 49