NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0922-24
NANCY G. SLUTSKY,
Plaintiff-Respondent,
v.
KENNETH J. SLUTSKY,
Defendant-Appellant. _______________________
Argued March 3, 2026 – Decided March 25, 2026
Before Judges Gilson, Perez Friscia, and Vinci.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1535-08.
Scott D. Danaher argued the cause for appellant (Sarno Da Costa D'Aniello Maceri Webb, attorneys; Scott D. Danaher, of counsel and on the briefs).
Philip A. Greenberg (Philip A. Greenberg, PC) argued the cause for respondent.
PER CURIAM Defendant Kenneth J. Slutsky appeals from the May 31, 2024 Family Part
order valuing his interest in a New Jersey law firm and awarding plaintiff Nancy
G. Slutsky fifty percent of the determined value. Defendant also appeals from
the November 18, 2024 order requiring him to pay plaintiff $487,041.15 in
counsel fees. Having reviewed the record, parties' arguments, and applicable
law, we affirm.
I.
We limit our recitation of the facts to the issues raised on appeal, as we
presume the parties are familiar with the facts and procedural history detailed in
our prior opinion affirming in part and reversing in part the trial judge's (first
judge) final judgment of divorce and subsequent order entered after a bench trial.
See Slutsky v. Slutsky, 451 N.J. Super. 332 (App. Div. 2017).
The parties were married for over thirty years and have three adult
children. Defendant graduated from Harvard Law School in 1978 and joined a
large New Jersey law firm (the firm), "specializ[ing] in complex tax matters."
Id. at 350. In 1984, defendant became an equity partner in the firm. Id. at 351.
In 2013, the firm converted from a professional corporation to a limited liability
partnership, requiring defendant "to provide a $300,000 capital contribution,
financed through a four-year note." Ibid. The firm's compensation committee
A-0922-24 2 evaluated defendant's performance as an equity partner in relation to the firm's
overall performance and thereafter allocated his compensation into a termination
credit account (TCA). Ibid.
Plaintiff has an accounting degree from the University of Pennsylvania
and a master's degree in finance from New York University. Plaintiff also
acquired her certified public accountant license. She was the primary caretaker
of the parties' children.
Plaintiff filed a divorce complaint in 2008, and thereafter the "litigation
was difficult and protracted." Id. at 343. A central focus of the parties' divorce
was the equitable distribution of the marital assets. During the pendency of the
divorce action, the parties filed extensive pretrial motions, a party experienced
serious health issues, a collateral guardianship matter was litigated, a nineteen-
day trial was conducted in 2014, and in August 2017, after the parties appealed,
we remanded this matter for further proceedings. Id. at 342.
After the 2014 trial, the first judge issued a final judgment of divorce on
May 30, 2014, which was accompanied by a written decision addressing
equitable distribution of the parties' marital assets, including defendant's interest
in the firm. Id. at 341-42. The first judge also ordered defendant to pay for a
portion of plaintiff's attorneys' fees. Id. at 365. After the parties moved to
A-0922-24 3 modify the judgment on various grounds, the first judge issued an amended final
judgment on July 28, 2014. The first judge also issued a companion order
granting plaintiff reconsideration, finding she was also entitled to equitable
distribution of defendant's two premarital IRAs and requiring a payment plan.
The parties cross-appealed from the first judge's orders. Id. at 341-42.
Defendant disputed the total valuation of his interest in the firm at $1,247,830,
which was comprised of a TCA value of $350,830 and a goodwill value of
"$1,198,077"1 less defendant's $300,000 capital contribution. Defendant also
challenged plaintiff's equitable distribution award of fifty percent of the valued
interest. At trial, plaintiff's expert, Ilan Hirschfeld, C.P.A., and defendant's
expert, Thomas J. Hoberman, C.P.A., offered valuation opinions regarding
defendant's interest in the firm. The parties disputed the value of defendant's
interest in the firm, consisting of the value of his TCA and acquired goodwill,
and whether plaintiff was entitled to equitable distribution of any interest.
Relevant to this appeal, we reversed in part the first judge's May 30, 2014
final judgment and subsequent July 28, 2014 order. Specifically, we reversed
and remanded for a new judge to address the valuation of defendant's TCA, "the
1 We note there is a numerical discrepancy in the record regarding the goodwill valuation. Because the parties do not raise the issue, we have included the value used in the first judge's order. A-0922-24 4 evaluation of the goodwill attached to defendant's interest in his law firm, as
well as [plaintiff's] percentage interest in this asset," the equitable distribution
of defendant's IRAs, and "the award of counsel fees" to plaintiff. Id. at 342. We
vacated the final judgment provisions that "fix[ed] the value" of the TCA and
goodwill "and distribut[ed] defendant's interest in the firm" because there were
insufficient factual findings. Id. at 356, 358. We remanded for an "analysis"
and factual findings "necessary to resolve the complex question of value" and
equitable distribution. Id. at 358. We directed another judge (second judge), to
conduct a "valu[ation] of defendant's interest in his firm" and an "analysis
[of] . . . plaintiff's interest in the asset" consistent with our opinion. Id. at 364.
Because we vacated multiple final judgment provisions and there were lingering
questions surrounding the amount of the attorneys' fees, we directed the second
judge to reconsider the award of attorneys' fees. Id. at 373.
On May 31, 2024, the second judge issued an order accompanied by a
fifty-eight-page written decision addressing the remanded issues after holding a
plenary hearing, considering additional submissions, hearing further arguments,
and reviewing "3[,]000 pages of transcripts from the nineteen (19) day trial."
Regarding defendant's interest in the firm, the second judge conducted a
valuation analysis and considered defendant's shareholder and employment
A-0922-24 5 agreements, TCA, pro rata share of the firm's net book value assets, and goodwill
interest. The second judge offered the parties an opportunity to provide further
"testimony on th[e] issue[s]" but the parties declined.
The second judge separately valued defendant's TCA and goodwill
interests in the firm. He used a May 20, 2008 valuation date, which was the date
plaintiff filed the divorce complaint. Regarding the TCA after tax value, which
was discounted for present value, the second judge considered Hirschfeld's value
of $292,908 and Hoberman's value of $285,000. He noted the experts' difference
in the TCA value of approximately $7,000 was not large. After reviewing the
experts' individual opinions, the second judge determined the appropriate TCA
value was $288,954 because both experts had made unsupported assumptions.
Specifically, he referenced Hirschfeld's assumption that defendant "would
receive a longevity bonus" and Hoberman's TCA assumption that defendant
would not "receive any further special allocations on a regular basis." Regarding
plaintiff's equitable distribution of the TCA, the second judge found she was
entitled to fifty percent, equaling $144,477. The second judge accepted
defendant had no cognizable "net book value" in the firm based on the experts'
agreement on the issue.
A-0922-24 6 After determining defendant's TCA value, the second judge found
defendant's goodwill value was $501,547.20. In addition to acknowledging the
legal precedent and factors applicable to the valuation of defendant's interest in
the firm, the second judge recognized he was tasked with reviewing defendant's
"accumulated . . . individual [goodwill] during his multidecade career at the
firm." He considered defendant's overall reputation related to repeat patronage,
"status as an equity partner" that provided him "special allocations" and
"share[d] . . . profits," and actual compensation compared to the reasonable
compensation of similarly situated attorneys. The second judge found a
"significant[]" excess of actual compensation, which was valued at $896,286
using a five-year review from 2002 to 2007.
The second judge acknowledged that the experts disagreed on defendant's
"excess compensation" above the reasonable compensation figure determined
for "similarly situated" attorneys. Hirschfeld's excess value was $221,286,
using $896,286 as defendant's actual income and "$675,000 as the reasonable
compensation figure." Hoberman's excess value was $42,000, using $830,000
as defendant's actual income (deducting charges for pension contributions, life
insurance, and medical insurance), and "$788,000 as the reasonable
compensation figure."
A-0922-24 7 The second judge recognized that the experts used Altman Weil data,2 but
determined they had individually adjusted the percentages in reaching opinions
on reasonable compensation in ways that were contradicted by the facts and
without "any reasonable or adequate explanation." Thus, the second judge was
unpersuaded by plaintiff's valuation of defendant's goodwill at $1,185,304 and
defendant's valuation of zero. The second judge emphasized that he could not
"ignore the incentives at play" and recognized a reasonable compensation
analysis was necessary.
The second judge performed a detailed analysis of the Altman Weil's 2008
edition provided data and noted "if [d]efendant was not an equity partner, but he
otherwise obtained the same qualifications and worked with the same degree of
effort and success, [his] reasonable compensation would have been significantly
2 Altman Weil, Inc., provides "management consulting services to legal organizations" and provides extensive surveys detailing compensation and management trends by legal department. See About Altman Weil, Altman Weil, Inc., https://altmanweil.com/about-altman-weil/ (last visited Mar. 16, 2026). Both parties' experts relied on Altman Weil surveys, which were not provided on appeal.
A-0922-24 8 lower." The second judge reviewed three separate survey groups,3 assigning
eighty percent to "the Individual Non-Litigation survey group" because the data
was most applicable.
The second judge found that "[d]efendant's actual annual compensation
[wa]s $896,286," the "annual reasonable compensation [was] . . . $729,103.60,"
and the resulting "annual excess compensation figure [was] $167,182.40." After
considering plaintiff's proposed capitalization rate of eighteen percent ,4 the
second judge determined that a capitalization rate of thirty-three percent was
more appropriate based on the considered risks. The second judge emphasized
the consideration of defendant's "life expectancy, the limits on [d]efendant's
ability to sell his interest in the firm, the risk profile of the firm, and other
relevant factors." It was noted that in 2014, when the first judge issued his
decision, defendant was approximately sixty years old and, in May 2024,
defendant was approximately seventy years old and still an equity partner
working at the firm. The capitalization rate of thirty-three percent applied to the
3 The Survey groups used were "attorneys practicing in New Jersey" admitted to the bar in between 1979 and 1983, "equity partners working in law firms with over 150 lawyers," and non-litigation attorneys (equity and non-equity partners) "that specialize in tax law." 4 Defendant did not propose a capitalization rate as he argued there was no applicable excess compensation amount. A-0922-24 9 $167,182.40 excess compensation value resulted in a "total value of
[d]efendant's goodwill [of] $501,547.20." The second judge recognized that
defendant's work-life expectancy suggested a "higher capitalization factor," but,
in evaluating the other factors, was convinced the capitalization rate was fairly
supported.
Regarding equitable distribution, the second judge considered the factors
enumerated under N.J.S.A. 2A:34-23.1. He found it relevant that the parties
were married for over thirty years, plaintiff was fifty-two years old when the
divorce complaint was filed, and she had suffered cancer, diabetes, arthritis, and
a broken back. Defendant was fifty-five years old when the complaint was filed
and had generally good health, except for experiencing migraines. The parties
had each contributed $30,000 at the start of the marriage to purchase a home and
together accumulated the marital estate. The second judge determined the
parties "lived a lavish lifestyle," including memberships in clubs, vacationing,
buying a home for $1.75 million and spending approximately $1 million on
renovations. The parties' annual expenses exceeded defendant's after-tax
earnings, and they benefited from his "family trusts." Plaintiff was the children's
primary caretaker but had hired assistance throughout the years. The second
judge found plaintiff was not gainfully employed due to her health issues and
A-0922-24 10 was "almost entirely [financially] dependent on [d]efendant." The second judge
noted plaintiff had accumulated approximately $2,627,230 in debt from 2002 to
2007. Relating to litigation fees incurred, the second judge determined plaintiff
owed $1,751,655.93.
The second judge reasoned defendant's income and specialized knowledge
of "complex tax law and estate planning" was exceptional. Defendant had
contributed to his children's upbringing through his earnings and caring for their
welfare. The second judge noted plaintiff had taken on the responsibility to raise
the children, defendant was candid in acknowledging he had also "run[] up the
tab" of debt, and defendant enabled plaintiff to amass credit card debt.
After determining defendant's TCA value was $288,954, his goodwill
value was $501,547.20, and the total value was $790,501.20, the second judge
found plaintiff was entitled to fifty percent of the total value after weighing the
equitable distribution factors. Accordingly, the second judge ordered that
plaintiff was entitled to $395,250.60 in equitable distribution.
The second judge next addressed whether defendant should be ordered to
pay a portion of plaintiff's attorneys' fees. On remand, we had directed the
second judge to address plaintiff's attorneys' fees. Id. at 368. We specifically
stated that "[t]he provision ordering defendant to pay plaintiff's fees is vacated"
A-0922-24 11 and the issue of attorneys' fees was to be addressed because we had "altered" the
results obtained and the first judge had failed to consider plaintiff's actions
throughout the litigation. The first judge had originally ordered defendant to
pay $467,793.38 of plaintiff's attorneys' fees and costs.5 Based on the record,
we discerned it was unclear whether plaintiff actually owed "more than '$1.7
million'" in fees. Id. at 367. We directed the second judge to consider the actual
amount of plaintiff's attorneys' fees owed, defendant's ability to pay, and
plaintiff's actions in incurring the attorneys' fees. We specifically stated "each
. . . issue[] must be reviewed on remand." Id. at 373. We did not limit the
second judge's consideration of relevant evidence on the issue of attorneys' fees.
The second judge, at the May 4, 2023 hearing, advised the parties that he
would address the remanded attorneys' fees issue based on the submissions and
"did[ not] need any additional testimony on that issue." The parties neither
objected nor requested to provide testimony as to the reasonableness of the fees.
The second judge weighed the parties' financial circumstances and ability
to pay. He found plaintiff received "$260,000 per year in permanent alimony,"
netting approximately "$175,000 after taxes," and had a wage garnishment
5 We note the first judge's opinion found plaintiff had incurred total fees and costs of $1,751,655.93, which included plaintiff's expert fees totaling $241,817.68. A-0922-24 12 against her for approximately $32,500 a year. While the second judge
questioned plaintiff's annual expenses, he found she did not have "available
income." Regarding defendant's ability to pay and available income, the second
judge noted defendant's income from the firm was reduced "by at least $260,000
per year" based on alimony and other required expenses. Nevertheless, the
second judge found defendant had a "substantial and well-established" earning
capacity while plaintiff was actively unemployed given her age and health
issues.
Regarding plaintiff's conduct, the second judge determined she was often
"counterproductive and [advanced] unreasonable" positions. He noted
plaintiff's behavior on remand was consistent with her behavior during the first
trial, which was described as disruptive, belligerent, confrontational, and erratic.
The second judge noted defendant had also caused the parties to incur greater
counsel fees through his actions, referencing defendant's unsuccessful pursuit of
moving to declare plaintiff incompetent, which resulted in her incurring
$87,014.24 in guardianship defense fees. Specifically, defendant had asserted
there was a "necessity to appoint a guardian ad litem for plaintiff[,]" which
resulted in "a different judge conduct[ing] a trial and conclud[ing] plaintiff was
A-0922-24 13 competent." Id. at 349. The second judge found defendant had mostly acted in
"good faith."
Further, the second judge noted there were over eighty-two pre-judgment
orders entered. "Plaintiff was found in violation of litigant's rights at least five
. . . times." The second judge compared plaintiff's attorneys' fees of
$1,509,838.25 to defendant's attorneys' fees of $757,823.77. Regarding three
pre-trial attorneys' fees awards, the second judge noted defendant had a partial
credit of $11,242.50. Additionally, defendant was entitled to a $30,000 credit
for advancing fundings "for post-remand litigation costs." These credits were
applied against plaintiff's attorneys' fees award. Finding it would be unfair to
require defendant to pay fifty percent of plaintiff's attorneys' fees, the second
judge ordered defendant to only pay thirty-five percent. In sum, defendant was
ordered to pay $487,041.15 of plaintiff's $1,509,838.25 in fees, less the credits
owed of $41,402.24.
Both parties thereafter moved for reconsideration. Defendant moved to
reconsider the determination of his interest in the firm, the award of counsel
fees, and for other various relief. At oral argument, defendant argued the second
judge committed a mathematical error and improperly averaged the experts'
opinions to arrive at the TCA value. He further asserted there was no goodwill
A-0922-24 14 value, and, alternatively, the court should have applied a forty percent tax effect
to the goodwill. Regarding counsel fees, defendant argued a plenary hearing
was required pursuant to Mayer v. Mayer, 180 N.J. Super. 165 (App. Div. 1981).
The second judge entered an amended order on November 18, 2024. Relevant
to this appeal, the second judge denied defendant's request for reconsideration
of his interest in the firm and found "[d]efendant agreed to waive a hearing " on
the issue of attorneys' fees. Plaintiff's requested reconsideration relief was also
denied.
On appeal, defendant argues reversal is warranted because the second judge
erred by: (1) incorrectly valuing defendant's interest in the firm, including valuing
his TCA at $288,954 and goodwill at $501,547.20; (2) awarding plaintiff fifty
percent of defendant's interest in the firm; and (3) compelling defendant to pay
$487,041.15 in attorneys' fees.
II.
"We accord deference to Family Part judges due to their 'special
jurisdiction and expertise in family [law] matters.'" Gormley v. Gormley, 462
N.J. Super. 433, 442 (App. Div. 2019) (alteration in original) (quoting Cesare v.
Cesare, 154 N.J. 394, 413 (1998)). Our scope of review of Family Part orders
is limited. Cesare, 154 N.J. at 411. A trial judge's "findings are binding on
A-0922-24 15 appeal so long as their determinations are 'supported by adequate, substantial,
credible evidence.'" Gormley, 462 N.J. Super. at 442 (quoting Cesare, 154 N.J.
at 411-12). However, while "a family court's factual findings are entitled to
considerable deference, we do not pay special deference to its interpretation of
the law." Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016) (quoting D.W.
v. R.W., 212 N.J. 232, 245 (2012)).
Further, our review of equitable distribution determinations is narrow.
Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998) (citing
Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985)). Family Part
judges have broad discretion to allocate assets subject to equitable distribution.
Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012).
Our Supreme Court, in Stern v. Stern, considered a spouse's "entire worth
of . . . [a] partnership interest" "in a very successful, well-known and highly
respected law firm." 66 N.J. 340, 344, 347 (1975). The Court stated:
Generally speaking[,] the monetary worth of this type of professional partnership will consist of the total value of the partners' capital accounts, accounts receivable, the value of work in progress, any appreciation in the true worth of tangible personalty over and above book value, together with good[]will, should there in fact be any; the total so arrived at to be diminished by the amount of accounts payable as well as any other liabilities not reflected on the partnership books. Once it is established that the books of the firm
A-0922-24 16 are well kept and that the value of partners' interests are in fact periodically and carefully reviewed, then the presumption to which we have referred should be subject to effective attack only upon the submission of clear and convincing proofs.
[Id. at 346-47.]
Goodwill is not a tangible asset but "is 'essentially [a] reputation that will
probably generate future business'" and "encompasses the 'advantages of an
established business that contribute to its profitability,' such as a good name,
capable staff, and a reputation for superior services." Slutsky, 451 N.J. Super.
at 359-60 (quoting Dugan v. Dugan, 92 N.J. 423, 431 (1983)). Further,
"'[g]oodwill can be translated into prospective earnings.'" Ibid. (alteration in
original) (quoting Dugan, 92 N.J. at 431).
The Supreme Court in Dugan recognized that:
After divorce, the law practice will continue to benefit from that goodwill as it had during the marriage. Much of the economic value produced during an attorney's marriage will inhere in the goodwill of the law practice. It would be inequitable to ignore the contribution of the non-attorney spouse to the development of that economic resource. An individual practitioner's inability to sell a law practice does not eliminate existence of goodwill and its value as an asset to be considered in equitable distribution. Obviously, equitable distribution does not require conveyance or transfer of any particular asset. The other spouse, in this case the wife, is entitled to have that asset
A-0922-24 17 considered as any other property acquired during the marriage partnership.
[92 N.J. at 434.]
The application of an accepted goodwill valuation methodology is
"accomplished by fixing the amount by which the attorney's earnings exceed
that which would have been earned as an employee by a person with similar
qualifications of education, experience[,] and capability." Ibid. The "actual
average" is determined using the compensation "before federal and state income
taxes." Id. at 439. "If the attorney's actual average realistically exceeds the total
of (1) the employee norm and (2) a return on the investment in the physical
assets, the excess would be the basis for evaluating goodwill." Id. at 439-40.
The Supreme Court further stated:
The excess is subject to a capitalization factor [which is] the number of years of excess earnings a purchaser would be willing to pay for in advance in order to acquire the goodwill. The precise capitalization factor would depend on [a variety of factors including] [t]he age of a lawyer . . . because . . . goodwill would probably terminate upon death. . . . Subject to such adjustments, . . . a figure close to the true worth of the law practice's goodwill may be obtained.
[Id. at 439-440.]
"In every case . . . the court shall make specific findings of fact on the
evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset
A-0922-24 18 valuation, and equitable distribution . . . ." N.J.S.A. 2A:34-23.1. Further, there
is "a rebuttable presumption that each party made a substantial financial or
nonfinancial contribution to the acquisition of income and property while the
party was married." N.J.S.A. 2A:34-23.1. "[T]he goal of equitable
distribution . . . is to effect a fair and just division of marital assets." Steneken
v. Steneken, 183 N.J. 290, 299 (2005) (quoting Steneken v. Steneken, 367 N.J.
Super. 427, 434 (App. Div. 2004)).
The Legislature enumerated the following sixteen factors a trial judge
should consider in determining an equitable distribution of property award:
a. The duration of the marriage or civil union;
b. The age and physical and emotional health of the parties;
c. The income or property brought to the marriage or civil union by each party;
d. The standard of living established during the marriage or civil union;
e. Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
f. The economic circumstances of each party at the time the division of property becomes effective;
g. The income and earning capacity of each party, including educational background, training,
A-0922-24 19 employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
h. The contribution by each party to the education, training[,] or earning power of the other;
i. The contribution of each party to the acquisition, dissipation, preservation, depreciation[,] or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
j. The tax consequences of the proposed distribution to each party;
k. The present value of the property;
l. The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
m. The debts and liabilities of the parties;
n. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple[,] or children;
o. The extent to which a party deferred achieving their career goals; and
A-0922-24 20 p. Any other factors which the court may deem relevant.
[N.J.S.A. 2A:34-23.1.]
The equitable distribution statute "reflects a public policy that is 'at least in part
an acknowledgment "that marriage is a shared enterprise, a joint undertaking,
that in many ways . . . is akin to a partnership."'" Thieme, 227 N.J. at 284
(quoting Smith v. Smith, 72 N.J. 350, 361 (1977)).
III.
Defendant first argues the second judge erred in valuing his TCA.
Defendant acknowledges that the experts' TCA valuations were within "a few
thousand dollars of each other" and argues the second judge "simply averag[ed]
the values of plaintiff's and defendant's respective experts' [opinions]."
Specifically, defendant posits the second judge performed "no analysis," "fail[ed]
to meticulously analyze the experts' values," and should have discounted
"plaintiff's expert's value after identifying an error with respect to the expert's
methodology." After a review of the second judge's decision, we disagree.
The second judge correctly conducted a valuation analysis considering
defendant's shareholder and employment agreements with the firm, the historic
value of his TCA, and separately considered "any goodwill interest [d]efendant
has as an equity partner that is unaccounted for by the TCA." (emphasis added).
A-0922-24 21 The second judge noted the experts somewhat closely agreed on defendant's TCA
value. He found plaintiff's expert opined the value was $292,908 and defendant's
expert opined the value was $285,000.
After addressing the experts' "methods of calculation," the second judge
contemplated the "assumptions made by each party." The second judge credited
assumptions in Hirschfeld's report highlighting that it was assumed defendant
"would continue to be compensated under the TCA system until age seventy,"
which, based on the passage of time, had proven to be true. He also noted that, at
the time of the Hirschfeld's report, defendant's receipt of a "conditional longevity
bonus" was not "guaranteed" because it vested only post-divorce, in 2013. We
note defendant was eligible for the longevity bonus after working at the firm for
thirty years. The second judge found no support for Hoberman's opinion that there
would be no "further special allocations on a regular basis." After finding each
expert had partially based their opinions on unsubstantiated positions, the second
judge found, after weighing the particular assertions, that the incorrect
assumptions were in equipoise and splitting the $7,000 differential was fair based
on the facts presented before him. "A trial court is free to accept or reject the
testimony of either side's expert[] and need not adopt the opinion of either expert
in its entirety." Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002). We
A-0922-24 22 discern no abuse of discretion in the second judge's determination because it was
based on a review of each expert's valuation.
Defendant next contends the second judge erred in finding defendant had
goodwill interest as an equity partner at the firm. He posits there exists zero
goodwill, despite the fact that he has been a long-term member of the firm and
undisputedly has garnered an actual income above comparable, reasonable
compensation amounts. Alternatively, defendant argues the second judge
incorrectly calculated goodwill because he did not determine a tax effect. We
disagree with defendant's assertions that his total interest is accounted for in the
TCA and goodwill was calculated incorrectly.
After the second judge reviewed the experts' opinions and their
methodologies, against the applicable law, he determined defendant's goodwill
value was $501,547. Observing that Hirschfeld used $896,286 as defendant's
actual income and Hoberman used $830,000 as defendant's actual income, and
after deducting certain contributions, the second judge then examined how each
expert arrived at a reasonable compensation figure for similarly situated attorneys.
He was unpersuaded by plaintiff's inflated value. Further, the second judge also
found no support for defendant's argument that "there is no goodwill value outside
of what is already accounted for by the TCA" as the value of the firm "interest and
A-0922-24 23 the value of the TCA [were] one in the same." The second judge relied extensively
on the methodology and capitalization factor used in Dugan. The record supports
the second judge's finding that neither expert's goodwill opinion was wholly
accurate because they were premised on selected favorable data for each party's
position.
After a review of the relevant factors, the second judge accurately found
defendant had a goodwill interest because the TCA did not account for the entirety
of the fair value of defendant's interest in the firm. He provided sufficient analysis
and reasons, based on the record, for determining defendant's annual compensation
was $896,286 and a similarly situated attorney's reasonable compensation was
$729,103.60. Regarding the reasonable compensation rate, the second judge
performed a detailed evaluation of three separate survey groups, attributing the
most weight to the practice-specific survey group. We, therefore, discern no error
in the second judge's determination that the "annual excess compensation figure"
was $167,182.40.
The second judge relied on Dugan in calculating the excess compensation
figure before tax effect and applying the capitalization factor, specifically quoting
the instruction that the value should be calculated "before federal and state income
A-0922-24 24 taxes."6 See 92 N.J. at 439. After finding the excess compensation figure, the
second judge then considered defendant's inability to sell his interest, work-life
expectancy, and other risk factors. The second judge then fairly applied a thirty-
three percent capitalization factor—setting defendant's goodwill value at
$501,547.20.
Based on the record in this matter, we are unpersuaded by defendant's
argument that he possessed zero goodwill because he could not "sell any purported
goodwill," and that any goodwill possessed by the firm was not shared with him.
This fails to consider the other applied factors. His inability to receive "a departing
member . . . [compensation] amount" above the TCA is only one factor that is
measured against his higher compensation and work-life expectancy at the firm.
Contrary to defendant's assertions, the second judge relied on clear and convincing
6 We note defendant argued in his motion for reconsideration that a forty percent tax effect should be applied to the goodwill value. During the reconsideration argument, the second judge noted no supporting authority was cited. On appeal, defendant again offers no authority to contradict the established standard not to apply a speculative tax effect on value. See Dugan, 92 N.J. at 439; Stern, 66 N.J. at 348 ("The fact that [defendant may] pay a tax on these receipts may be a relevant consideration when considering . . . equitable [distribution] . . . , but it does not affect the value of defendant's interest in the law firm."); Orgler v. Orgler, 237 N.J. Super. 342, 355 (App. Div. 1989) ("[The] deduction of hypothetical taxes from present value frustrates the trial court's basic function to assure [equitable disposition]."). A-0922-24 25 evidence and accepted methodology in determining defendant's goodwill value.
We discern no abuse of discretion.
We next turn to consider defendant's argument that the second judge
erroneously awarded plaintiff fifty percent of his valued interest in the firm.
Defendant again argues he is unlike a business owner because he cannot "sell his "
interest in the firm and realize a value. This contention discounts his ongoing
income stream that was established to be greater than the average compensation
for similarly situated attorneys. Defendant posits it was "inequitable" to award
plaintiff fifty percent because she "received all of the benefit and none of the risk
. . . realizing such value over the course of defendant's remaining working years ."
This position also ignores plaintiff's contributions made during the parties'
marriage over thirty years, and the extensive, relevant factors considered by the
second judge.
After determining defendant's interest in the firm, the second judge found
plaintiff was entitled to fifty percent in equitable distribution, awarding
$395,250.60. The second judge's fifty percent determination was done in a manner
consistent with the equitable distribution statute. He provided a detailed
explanation of the relevant applicable factors and carefully weighed each factor.
We, therefore, discern no abuse of discretion in the second judge's award.
A-0922-24 26 Finally, we address defendant's argument that the second judge "egregiously
abused his discretion" in ordering defendant to reimburse plaintiff for $487,041.15
in attorneys' fees, which represented thirty-five percent of her total attorneys' fees
incurred. Specifically, defendant argues the second judge erred by expanding the
scope of our remand, which he posits had reversed only the first judge's award of
"$467,793.38 in counsel fees . . . for Donahue Hagan." Stated another way,
defendant argues our "remand only pertained to the counsel fees [plaintiff]
incurred with one of her prior attorneys" as the first judge had "specifically denied
[her] request for defendant to contribute toward the counsel fees for her other
attorneys." Defendant alternatively argues that, if the second judge appropriately
considered plaintiff's total amount of attorneys' fees, then reversal is warranted
because he "failed to appropriately analyze . . . the relevant factors, including . . .
the reasonableness of the fees" and plaintiff's bad faith.
Defendant's argument that we limited the second judge's review of attorneys'
fees on remand is misplaced. We clearly "determine[d] certain findings [made by
the first judge regarding attorneys' fees] were mistaken, and the need for additional
review require[d] reversal." Slutsky, 451 N.J. Super. at 365. Notably, defendant
had moved to file supplemental briefing in the prior appeal related "to the amount
of plaintiff's counsel fee obligation," which we granted. Id. at 352. We observed
A-0922-24 27 the first judge "considered the amount of fees plaintiff incurred, . . . as more than
'$1.7 million.'" Id. at 367. We vacated the provision ordering defendant to pay
plaintiff's fees and determined a review of the award of plaintiff's attorneys' fees
was warranted because the "results obtained by plaintiff ha[d] now been altered on
appeal." Ibid. Thus, the second judge correctly addressed the issue of attorneys'
fees anew.
We also reject defendant's argument that "the [second] judge ignored that
defendant had never been afforded an opportunity to challenge the fees of the
other attorneys." This assertion is belied by the record. At the May 2023
testimonial hearing, the second judge advised the parties he would address the
remanded issue of attorneys' fees based on the submissions and "did[ not] need
any additional testimony on that issue." Neither party objected nor requested a
hearing to dispute the reasonableness of the fees billed. Additionally, defendant
apparently never filed a motion to supplement the record on the issues of
attorneys' fees. Thus, we discern the second judge committed no error in not
having a hearing for defendant to challenge plaintiff's attorneys' fees.
After a review of the second judge's detailed written decision, we are also
unpersuaded by defendant's argument that the second judge failed to consider
and analyze the relevant factors in awarding plaintiff $487,041.15 in attorneys'
A-0922-24 28 fees. The second judge reviewed the amount of fees plaintiff owed, each party's
ability to pay, and their conduct throughout the litigation. While plaintiff's
conduct was found to be at times "unjustifiable" and improper, defendant was
also found to have "pursued [a] course of action that increased the parties'
[attorneys'] fees." The second judge found defendant had superior financial
circumstances and a greater ability to pay but it would be "unfair to compel
[d]efendant to pay for the majority or . . . fifty percent of" plaintiff's attorneys'
fees. In considering the relevant factors, he reasoned that ordering defendant to
pay approximately thirty-five percent was supported because it would
conversely be unfair to "require [p]laintiff to bear the burden of . . . the entirety
of her [attorneys'] fees." Because the record sufficiently supports the second
judge's decision, we discern no abuse of discretion.
Affirmed.
A-0922-24 29