Jordana Elrom v. Elad Elrom

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4565-12T4
JORDANA ELROM,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
February 23, 2015
v.
APPELLATE DIVISION
ELAD ELROM,

Defendant-Appellant.
_______________________________

Submitted November 3, 2014 - Decided February 23, 2015

Before Judges Lihotz, St. John and
Rothstadt.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Bergen County, Docket No. FM-02-2214-11.

Townsend, Tomaio & Newmark, LLC, attorneys
for appellant (John E. Clancy, on the
briefs).

Jordana Elrom, respondent pro se.

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Defendant, Elad Elrom, appeals from provisions set forth in

a November 19, 2012 final judgment of divorce (FJOD), entered

following trial. He challenges the imputation of income to the

parties for the purpose of calculating child support and limited

duration alimony payable to plaintiff Jordana Elrom. Defendant
also challenges supplemental child support added for child care

and extracurricular activities, the allocation of assets

equitably distributed, and appeals from a February 21, 2013

order denying reconsideration of the FJOD's terms.

Following our review of the issues raised on appeal, in

light of the record and the applicable law, we agree the judge

erred in increasing child support by work-related child-care

costs during a period of plaintiff's unemployment and the cost

of the children's everyday extracurricular activity expenses,

which generally are included in the amount of child support. In

all other respects, including the imputation of income, we

affirm.

I.

The facts pertinent to our review are taken from the five-

day trial record. The parties appeared self-represented and

presented testimony regarding their incomes, along with fact

testimony from plaintiff's father and expert testimony.

Numerous documents were introduced into evidence regarding the

parties' respective incomes, expenses, and assets.

The parties, who are now thirty-eight, were married in

February 2005 and separated in September 2010. They have two

young children, who were born in 2008 and 2010. Prior Family

Division proceedings between the parties were consolidated into

2 A-4565-12T4
this matter (FD-02-435-11) or dismissed. Although the parties

litigated custody and parenting time at trial, they successfully

mediated an agreement, largely resolving custody issues.

Plaintiff is an attorney, licensed to practice in New York

and New Jersey. When she married defendant, she worked in

Newark earning an annual salary of $102,000. Thereafter, she

took a position with a New York firm, earning $175,000 per year.

In early 2008, just prior to the birth of the parties' first

child, plaintiff was laid off. She testified the parties agreed

she would stay home to raise the children, possibly working

part-time. In 2009, plaintiff commenced part-time employment,

working ten to fifteen hours per week. When the parties

separated, she earned $67.50 per hour, working approximately

twenty-six hours per week. Plaintiff next secured an

associate's position earning $80,640, but lost her job prior to

trial. Asserting child-care obligations required she "focus her

job search on New Jersey firms," plaintiff intended to seek a

New Jersey position and asked "the [c]ourt impute [to] her a

salary of $80,640.00."

Defendant is a software engineer, technical writer, web

developer, and entrepreneur. In the past, he held positions

with Sigma, HBO, Weight Watchers, and MTV. During an earlier

non-dissolution matter, he earned $193,375 per year as a

3 A-4565-12T4
consultant for HBO. Before trial, he changed jobs, and was

employed as the chief technical officer for ChatAnd Inc.

(ChatAnd), earning a base salary of $120,000, with potential to

earn as much as $295,000. Defendant also owned Elrom LLC, which

performed consulting services, sponsored an annual technology

trade show, and participated in several start-up companies.

At trial, plaintiff produced documents evincing defendant's

income, and explained he was not compliant with her discovery

demands. Plaintiff asserted during the marriage, defendant

received income from "clients on the side" and royalties from

three books he authored. Plaintiff also discovered defendant

started a company in Las Vegas on February 2, 2012, called

Effective Idea, LLC, and withdrew funds from Elrom LLC's

account, which he transferred to an account at Banca Privada

d'Andorra. Defendant stipulated the Andorra account held

$67,978.

As to the marital standard of living, plaintiff explained

the parties lived an "upper middle class, at times, lavish

lifestyle" before the children were born. They owned a New York

City apartment. When they moved to Englewood in anticipation of

the birth of their second child, they rented their apartment.

After separating, defendant moved to New York City, while

plaintiff and the children moved into her parents' home in

4 A-4565-12T4
Montville.1 Plaintiff had residential custody of the children.

She sought alimony and listed her actual expenses "to the penny"

in an amended case information statement (CIS).

Larry Frankel, CPA, CFF, plaintiff's expert forensic

accountant, examined monies deposited into the parties' various

bank accounts to calculate defendant's annual income. Frankel

concluded deposits into Elrom LLC's account from January 2009 to

February 2012, totaled $903,241. Reducing the sums by an

estimated twenty to thirty percent for overhead, he asserted

profit, exclusive of taxes, amounted to seventy to eighty

percent.

Defendant countered with testimony from his forensic

employability expert Gary Young, whose vocational evaluations

addressed the likely earnings of the parties. Young's reports

were not provided in the appellate record.

Young concluded defendant was likely to earn $120,000

annually as a software engineer and technical writer. He based

this opinion on his review of defendant's resume and a telephone

interview, but acknowledged he was not provided with defendant's

ChatAnd contract, and did not consider defendant's earning

capacity as a consultant.

1
Plaintiff testified she and the children were evicted from
the Englewood apartment because defendant failed to satisfy his
portion of the rent.

5 A-4565-12T4
 Young also offered testimony regarding plaintiff's

employability, although he did not interview her. After

considering her degrees and bar admissions, he conducted

research using Internet sources and suggested her earning

possibilities, primarily in New York City, ranged from "$108,740

to $177,850." Young did not factor parenting responsibilities,

the children's special needs, or day care availability into this

calculus.

Defendant next offered Jonathan Klopchin, a credentialed IT

recruiter. His report is not included in the record.

Evaluating defendant's experience with "Flash, Flex, Front and

implementation" technologies, which Klopchin explained were

declining in demand, he asserted a full-time Flex engineer could

make $100,000 to $150,000, although some Flex developers could

garner more than $200,000, which was "more the exception than

the rule." He stated a Flex consultant would be "fortunate to

get [$]90 an hour" and "a lead developer" could earn $165,000.

During defendant's direct testimony, he asserted the actual

gross receipts of Elrom LLC for 2010 were merely $145,000. He

argued Frankel's use of deposits inflated estimated income

because it included rental receipts from the New York City

apartment and funds withdrawn but re-deposited. However,

defendant later admitted he received receipts of $19,000 in

6 A-4565-12T4
royalties and $88,000 from consulting, and spent $11,000 in

payroll expenses. The sums, along with his salary, make his

total 2010 income $252,000. Defendant discussed his reported

receipts in 2011, as captured on Schedule C of his federal tax

return, which totaled $250,000.2 He mentioned $206,000 in

consulting fees from HBO, a position he lost. Defendant also

asserted ChatAnd just terminated his services, and his last

paycheck was July 27, 2012. Defendant suggested $120,000 per

year should be imputed to him, as opined by Young.

Following trial, the judge issued a written opinion

granting plaintiff's request for divorce. Addressing the

collateral issues arising upon the dissolution of the marriage,

the judgment awarded plaintiff limited duration alimony for

three years in the amount of $1,000 per week "based upon the

differential in their earnings, [p]laintiff's needs and

[d]efendant's ability to pay." The judgment further ordered

defendant to pay child support in the amount of $697 per week,

which included insurance premiums and work-related child care,

plus fifty percent of the children's uncovered medical costs,

exceeding $250 per child, and fifty percent of the children's

2
Defendant introduced several documents during his
testimony; however, the record exhibits do not contain the trial
markings making it difficult to reconcile his testimony with the
record.

7 A-4565-12T4
extracurricular and sporting activity fees, provided defendant

consents to their participation in advance. Defendant received

an $8,702 credit for overpayment of work-related child-care

expenses.

In calculating support, the judge found plaintiff's income

was represented by her last full-time job, as an associate

attorney in New Jersey, and imputed $80,640 per year. The judge

rejected defendant's argument to limit his earning ability to

$120,000. Rather, after considering defendant's historic

earnings, which were "readily ascertainable from his limited

liability company and personal bank statements over the past

three years . . . as examined and quantified by [p]laintiff's

forensic accounting expert, [Frankel]," the judge imputed gross

income to defendant of $230,731.42 per year, calculating the

three-year average gross receipts and factoring an "expense-out

rate of 20%."3

Equitably distributing the parties' marital assets, she

ordered: an equal division of the bank account associated with

rental receipts from their former New York City apartment;

plaintiff receive $11,000 to equalize the values of the parties'

3
The judge found defendant's business gross receipts were
$286,313.71 in 2009, $321,614.41 in 2010, and $257,314.69 in
2011, for an average of $288,414.27 over this three-year period.

8 A-4565-12T4
respective automobiles; plaintiff retain her three retirement

accounts and personal property; and defendant retain Elrom LLC,

any other start-up companies in which he held an interest, and

his personal property.

Both parties moved for reconsideration of the provisions of

the FJOD. The motions were denied and this appeal followed.4

On appeal, defendant attacks the imputed income levels for

each party, arguing the income level imputed to him was too high

and the level imputed to plaintiff was too low. Defendant also

argues the judge erred in adding child-care and the children's

extracurricular activity costs as additional child support.

Finally, defendant challenges the equitable division of the

parties' assets. We consider these issues.

II.

Our review of a trial judge's factual findings, following a

non-jury trial, is limited. Cesare v. Cesare, 154 N.J. 394, 411

(1998). Generally, "findings by the trial court are binding on

appeal when supported by adequate, substantial, credible

evidence." Id. at 411-12. In matrimonial matters, this

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

largely testimonial and involves questions of credibility," id.

4
On July 25, 2013, we granted defendant's motion to file his
appeal as within time.

9 A-4565-12T4
at 412 (citation and internal quotation marks omitted), because

the trial judge has "a feel of the case" and is in the best

position to "make first-hand credibility judgments about the

witnesses who appear on the stand." N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008). Review of the cold

record alone "can never adequately convey the actual happenings

in a courtroom." N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012) (citing E.P., supra, 196 N.J. at 104).

Reversal is warranted only when a mistake must have been

made because the trial court's factual findings are "'so

manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the

interests of justice . . . .'" Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting

Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App.

Div.), certif. denied, 40 N.J. 221 (1963)). Consequently, when

a reviewing court concludes there is satisfactory evidentiary

support for the trial court's findings, "'its task is complete

and it should not disturb the result . . . .'" Beck v. Beck, 86

N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162

(1964)). "Deference is appropriately accorded to factfinding;

however, the trial judge's legal conclusions, and the

application of those conclusions to the facts, are subject to

10 A-4565-12T4
our plenary review." Reese v. Weis, 430 N.J. Super. 552, 568

(App. Div. 2013). Finally, legal conclusions are always

reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

A.

Defendant urges income imputation is reserved for parties

who, without just cause, are intentionally and voluntarily

unemployed or underemployed. Because he was working, he argues

his circumstances do not trigger income imputation and his

salary should have been accepted as an appropriate earning level

when fixing support. Defendant also argues imputation

principles require an increase in plaintiff's income, not mere

acceptance of the modest salary she last earned. We reject the

legal premise as applied, and note the facts of record belie

defendant's contentions.

"'Imputation of income is a discretionary matter not

capable of precise or exact determination[,] but rather

require[es] a trial judge to realistically appraise capacity to

earn and job availability.'" Gnall v. Gnall, 432 N.J. Super.

129, 158 (App. Div. 2013) (quoting Storey v. Storey, 373 N.J.

Super. 464, 474 (App. Div. 2004)), certif. granted, 217 N.J. 52

(2014). While an "abuse of discretion . . . defies precise

definition," we will not reverse the decision absent a finding

11 A-4565-12T4
the judge's decision "rested on an impermissible basis,"

considered "irrelevant or inappropriate factors," Flagg v. Essex

Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citations and

internal quotation marks omitted), "failed to consider

controlling legal principles or made findings inconsistent with

or unsupported by competent evidence." Storey, supra, 373 N.J.

Super. at 479.

Certainly, the court is authorized to impute income for the

purpose of determining child support when a parent is found to

be voluntarily unemployed or underemployed without cause. See

Caplan v. Caplan, 182 N.J. 250, 268-70 (2005) (stating parent's

ability to earn income, or "his [or her] human capital," should

be "theoretically activated for the purpose of evaluating his

[or her] support obligation" and the amount of income that

"should be imputed to him [or her]"). "'In treating the matter

of support, our courts have always looked beyond the [parent's]

claims of limited resources and economic opportunity. They have

gone far to compel a parent to do what in equity and good

conscience should be done for [the] children.'" Lynn v. Lynn,

165 N.J. Super. 328, 341 (App. Div.) (quoting Mowery v. Mowery,

38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J.

307 (1956)), certif. denied, 81 N.J. 52 (1979). Thus, a "'court

has every right to appraise realistically [a] defendant's

12 A-4565-12T4
potential earning power,'" ibid. (quoting Mowery, supra, 38 N.J.

Super. at 102), and examine "potential earning capacity" rather

than actual income, when imputing the ability to pay support.

Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div.

1999).

This authority is incorporated in the New Jersey Child

Support Guidelines (Guidelines). See R. 5:6A (adopting

Guidelines set forth in Appendix IX-A to the Court Rules). The

Guidelines state:

[i]f the court finds that either parent is,
without just cause, voluntarily
underemployed or unemployed, it shall impute
income to that parent according to the
following priorities:

a. impute income based on
potential employment and earning
capacity using the parent's work
history, occupational quali-
fications, educational background,
and prevailing job opportunities
in the region. The court may
impute income based on the
parent's former income at that
person's usual or former
occupation or the average earnings
for that occupation as reported by
the New Jersey Department of Labor
(NJDOL);

b. if potential earnings cannot
be determined, impute income based
on the parent's most recent wage
or benefit record . . . .

[Child Support Guidelines, Pressler &
Verniero, Current N.J. Court Rules, comment

13 A-4565-12T4
 12 on Appendix IX-A to R. 5:6A at 2635
(2015).]

These legal precepts equally apply when establishing a

party's obligation to pay alimony. See Tannen v. Tannen, 416

N.J. Super. 248, 261 (App. Div. 2010) (noting a trial judge "may

impute income" in the process of "determining an appropriate

alimony award"), aff'd o.b., 208 N.J. 409 (2011); Storey, supra,

373 N.J. Super. at 474-80 (imputing income to obligor based on

earning capacity despite actual job earning a lower income).

"[O]ne cannot find himself in, and choose to remain in, a

position where he has diminished or no earning capacity and

expect to be relieved of or to be able to ignore the obligations

of support to one's family." Arribi v Arribi, 186 N.J. Super.

116, 118 (Ch. Div. 1982). See also Gnall, supra, 432 N.J.

Super. at 159 (affirming imputation of income to party based on

past salary as computer programmer despite a desire to work as a

teacher for lower pay).

Further, "failure . . . to provide adequate financial

information place[s] the hearing judge in a position where he

[or she] ha[s] to . . . realistically impute income." Tash v.

Tash, 353 N.J. Super. 94, 99 (App. Div. 2002). Imputation may

also be justified when examining income reported by self-

employed obligors, who control the means and the method of their

earnings. See Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29

14 A-4565-12T4
(App. Div. 2009) (noting a self-employed obligor is "'in a

better position to present an unrealistic picture of his or her

actual income than a W-2 earner'" (quoting Larbig v. Larbig, 384

N.J. Super. 17, 23 (App. Div. 2006))); Platt v. Platt, 384 N.J.

Super. 418, 426-27 (App. Div. 2006) (affirming court's rejection

of last annual income of self-employed defendant in favor of

imputing income). Accordingly, "[b]oth when setting child

support and in reaching a proper alimony award, a judge must

examine not only each party's income, but also his or her

earning ability." Gnall, supra, 432 N.J. Super. at 159.

We focus on the facts supporting imputation. Contrary to

defendant's current claims of full-time employment, he

specifically testified he was released from his position at

ChatAnd. When pressed on whether his circumstances would change

once ChatAnd received requested financing, defendant insisted

his employment was terminated.

Historically, defendant received wages and other payments

from one main company, such as Sigma, HBO, and ChatAnd, along

with royalties and separate consulting fees. The level of

earnings proffered by Frankel, who analyzed defendant's business

deposits, along with defendant concessions, evinced his 2010

gross income of at least $252,000; 2011 fees from HBO alone were

$206,000 and reported gross receipts totaled $250,000.

15 A-4565-12T4
Additional unrefuted proofs showed defendant received

supplemental earnings, not only from self-employment through

consulting, but also reoccurring royalty receipts.

Significant to rejecting defendant's suggested earnings

level was the trial judge's credibility findings. In light of

the documented historic earnings, the judge found defendant

"attempted to portray himself as lacking the skills and

education to sustain a salary in the $250,000.00 range, when all

the evidence is to the contrary." Further, she rejected as

unsupported defendant's claim he accepted the lower salary

position at ChatAnd to spend more time with the children.

Several times in her opinion she found defendant was being

dishonest with the court.

The judge considered and rejected the testimony of the

defendant's experts. Young's opinion defendant might earn

$80,000 to $100,000 was labeled "borderline preposterous in

light of the documented proofs that [d]efendant's income has

been 2.5 to 3 times more [than that amount] for the past three

years." Young ignored defendant's employability and earnings as

a consultant, and his employment contract, allowing possible

earnings up to $295,000. Even Klopchin testified defendant's

salary range was higher than defendant's and Young's estimates.

Nevertheless, the judge rejected the expert's suggested earning

16 A-4565-12T4
level simply because for years, defendant's salary always

exceeded Klopchin's estimates.

In light of all of this evidence, we reject as factually

unsubstantiated and legally insufficient the notion imputation

does not apply when determining this defendant's income because

he held a full-time position. We determine the evidence

supports the judge's findings that defendant's field of

expertise, as well as his employment and salary history,

demonstrate a substantial earning capacity, well in excess of

his last documented base salary of $120,000 per year, and

provided a sound basis to impute additional income.

We further discern no abuse of discretion in using a three-

year average of defendant's earnings from all sources,

demonstrated by deposits into his business account. Overall, we

conclude this was a fair and reasonable methodology to fix an

appropriate level of income for consideration of support based

on "sufficient credible evidence present in the record after

consideration of the proofs as a whole." Rolnick v. Rolnick,

262 N.J. Super. 343, 360 (App. Div. 1993) (citation and internal

quotation marks omitted).

Defendant alternatively argues the court should have

appointed an expert to determine his earning capacity, because

Frankel's use of deposits and an estimated overhead expense was

17 A-4565-12T4
hypothetical and failed to consider his actual earnings and

expenses. We disagree.

Although the court may appoint an expert to resolve an

economic issue, R. 5:3-3(c), defendant had an affirmative

obligation to provide the requested discovery, which included

proof of his earnings and expenses through employment and his

closely held businesses. Defendant controlled the documentation

on this issue and chose not to fully reveal all the facts.

Defendant even chose to not provide relevant facts to his

retained experts, resulting in a distorted analysis.

Defendant's lack of credibility, demonstrated by his refusal to

disclose information or respond to inquiries, was properly

weighed in rejecting his claims of limited earnings. See

Cesare, supra, 154 N.J. at 412. Moreover, the judge's reliance

on plaintiff's exhibits, Frankel's expert opinion, and

defendant's own admissions, provided substantial credible

evidence to impute income without the need to appoint a court

expert.

Defendant next argues the judge abused her discretion when

imputing income to plaintiff. Defendant notes plaintiff earned

as much as $175,000 as an attorney in New York City. Further,

he relies on Young's testimony stating attorneys in New York

18 A-4565-12T4
City can earn between $108,000 and $178,850. He thus asserts

use of $80,640 per year was error. We reject these arguments.

At trial, plaintiff was unemployed after being "dismissed"

from her job. Prior to obtaining that position, she worked

part-time. Her last full-time New York City job was in 2008,

four years prior to trial. During the intervening years,

plaintiff bore two children and, since separation served as the

primary residential parent. The parties' children are young:

one is seven and has special medical needs because the child is

"severely allergic to dairy, eggs, nuts and seeds[,]" and the

other is only four. Defendant's parenting time, set forth in

the FJOD, is limited to seven and one-half hours on alternate

Saturdays and Sundays, with no parenting time during the

workweek. Taken together, these facts support the imputed

income level determined by the trial judge.

Considerations involving children must be weighed when

imputing income. The first factor listed by the Legislature in

guiding a judicial determination of a fair child-support award

is serving the "[n]eeds of the child . . . ." N.J.S.A. 2A:34-

23(a)(1). Also, the Guidelines discuss the need to account for

young children's needs when imputing income to the parent of

primary residence, stating:

In determining whether income should be
imputed to a parent and the amount of such

19 A-4565-12T4
 income, the court should consider: (1) what
the employment status and earning capacity
of that parent would have been if the family
had remained intact or would have formed,
(2) the reason and intent for the voluntary
underemployment or unemployment, (3) the
availability of other assets that may be
used to pay support, and (4) the ages of any
children in the parent's household and
child-care alternatives. . . . When
imputing income to a parent who is caring
for young children, the parent's income
share of child-care costs necessary to allow
that person to work outside the home shall
be deducted from the imputed income.

[Pressler & Verniero, supra, comment 12 on
Appendix IX-A to R. 5:6A at 2635.]

On this issue, the Supreme Court has "noted that '[t]he key to

both the [G]uidelines and the statutory factors is flexibility

and the best interest of children.'" Caplan, supra, 182 N.J. at

266 (first alteration in original) (quoting Pascale v. Pascale,

140 N.J. 583, 594 (1995)). The importance of addressing a

child's needs because of health or tender years may dictate the

proximity of parental employment.

Finding plaintiff accessible to address the children's

needs "paramount," the judge determined plaintiff's decision to

limit her employment search to New Jersey was reasonable.

Plaintiff's sole responsibility for the children's care during

the workweek and a need to be available if the older child

suffers anaphylaxis support this decision. We agree the

children's needs were properly weighed and found to limit

20 A-4565-12T4
plaintiff's work schedule and confine her employment search to

New Jersey.

Young's testimony regarding plaintiff's earning capacity

was rejected by the trial judge for several reasons. First, the

trial judge noted Young had no experience in the legal field.

Second, he "conducted little if no research [and] failed to test

plaintiff," "admitting that he did nothing more than an internet

engine search of New York job opportunities." Third, Young

"failed to consider [p]laintiff's parenting responsibilities and

desire to work within New Jersey to remain in close proximity to

the children," and, therefore, eliminated consideration of New

Jersey opportunities. Finally, Young's evaluation did not

examine "[p]laintiff's skill set [] in the financial and banking

areas," a legal specialty he admitted put her at "a disadvantage

in today's market," because of limited available positions.

We determine the amount of wages imputed to plaintiff was

based on her immediate prior position with a large New Jersey

firm, headquartered in a major city. This is appropriate.

Young's testimony was properly rejected as a generalized

statement of New York City attorney wages, rather than an

opinion of what plaintiff could earn. Accordingly, we find no

abuse of discretion in imputing plaintiff's income as guided by

her past wages.

21 A-4565-12T4
 B.

Challenging the child support award, defendant asserts the

judge erred by requiring him to contribute to what he

characterized as "exorbitant child-care expenses" at a time

plaintiff was unemployed, and to pay, as additional support,

one-half the cost of the children's extracurricular activities.

Plaintiff acknowledged she was not working, but insisted "[t]he

need for childcare was evident," rationalizing she was "consumed

with an intense, though unsuccessful search for employment" and

"preparation for trial," which she characterized as "a full-time

job." Finally, plaintiff urged the need for child care to

prevent disruption to the children's "established routine" and

because preschool "space was limited," making it "impossible to

obtain a spot again if either [child] was taken out for a period

of time."

Following our review, we find plaintiff's assertions

unavailing. We agree with defendant the judge erroneously added

child-care and extracurricular activity costs as additional

support.

The Guidelines state: "The average cost of child care,

including day camp in lieu of child care, is not factored into

in the schedules. The net cost (after tax credits) of work-

related child care should be added to the basic obligation if

22 A-4565-12T4
incurred." Pressler & Verniero, supra, comment 9 on Appendix

IX-A to R. 5:6A at 2632. The Guidelines do not sanction child-

care expenses as additional support when a party is unemployed.

Ibid. Rather, the Guidelines' recognition of child care is

factored when imputing income to the custodial parent. Pressler

& Verniero, supra, comment 12 on Appendix IX-A to R. 5:6A at

2635. Thus, an equitable adjustment to the custodial parent's

imputed earnings accounts for the economic reality of parental

employment.

As to the cost of children's activities, the Guidelines

specify a child support award includes entertainment

expenditures, specifically "[f]ees, memberships and admissions

to sports, recreational, or social events, lessons or

instructions, movie rentals, televisions, mobile devices, sound

equipment, pets, hobbies, toys, playground equipment,

photographic equipment, film processing, video games, and

recreational, exercise or sports equipment." Pressler &

Verniero, supra, comment 8 on Appendix IX-A to R. 5:6A at 2631-

32. Guidelines support may be supplemented by court approved

extraordinary expenses, which are

predictable and recurring expenses for
children that may not be incurred by average
or intact families such as private
elementary or secondary education, special
needs of gifted or disabled children, and
NCP/PAR time transportation expenses. The

23 A-4565-12T4
 addition of these expenses to the basic
obligation must be approved by the court.
If incurred, special expenses that are not
predictable and recurring should be shared
by the parents in proportion to their
relative incomes (i.e., the sharing of these
expenses should be addressed in the general
language of the order or judgment). Special
expenses not included in the award should be
paid directly to the parent who made or will
make the expenditure or to the provider of
the goods or services.

[Pressler & Verniero, supra, comment 9 on
Appendix IX-A to R. 5:6A at 2633.]

Finally, use of the Guidelines is rebuttable, as "[t]he

[G]uidelines may be modified or disregarded by the court []

where good cause is shown," including "the presence of other

relevant factors which may make the [G]uidelines inapplicable or

subject to modification . . . ." R. 5:6A.

In her opinion, the trial judge did not explain why she

deviated from the Guidelines by adding child-care and

extracurricular activity costs as supplemental support.

Reviewing the record we find plaintiff's assertions of need were

not evidentially supported; they merely reflect her opinion.

Such testimony fails to establish the "good cause" necessary for

disregarding the Guidelines provisions. Ibid. Further, the

record is silent on a timeline for plaintiff's resumption of

full-time employment, or her specific efforts to resume working.

In light of this record, we do not find a legal basis to require

24 A-4565-12T4
payment of child-care expenses. The costs could be added as

additional support once plaintiff resumes employment. At the

same time, the court's calculation of child support failed to

reduce plaintiff's imputed income by her share of imputed child-

care expenses.

In her merit's brief, plaintiff seeks to validate the

inclusion of child-care expenses by suggesting the sums

represent extra support authorized because the parties' incomes

exceed the maximum net income to which the Guidelines apply.

See Pressler & Verniero, supra, Appendix IX-F to R. 5:6A at 2708

(showing the maximum combined net weekly income of parents

listed on the schedule for computing Guidelines support is

$3,600). Plaintiff correctly states the judge has discretion to

award supplemental support when net income exceeds the specified

gross income threshold of $187,200.5 See Pressler & Verniero,

supra, comment 20 on Appendix IX-A to R. 5:6A at 2645. See also

Isaacson v. Isaacson, 348 N.J. Super. 560, 579-80 (App. Div.)

("We have generally recognized that where the parties have the

financial wherewithal to provide for their children, the

5
The Guidelines provide "the 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 specified in N.J.S.A. 2A:34-23." Pressler & Verniero,
supra, comment 20 on Appendix IX-A to R. 5:6A at 2645.

25 A-4565-12T4
children are entitled to the benefit of financial advantages

available to them. . . . Children are entitled to not only bare

necessities, but a supporting parent has the obligation to share

with his children the benefit of his financial achievement."

(citations omitted)), certif. denied, 174 N.J. 364 (2002).

However, the judge's opinion, although thoroughly addressing the

underpinnings supporting her conclusion on other issues, is

silent on the need for or basis of imposing supplemental

support.

"Rule 1:7-4 requires a judge to provide findings of fact

and conclusions of law on every [decision] decided by a written

order that is appealable by right." Fodero v. Fodero, 355 N.J.

Super. 168, 170 (App. Div. 2002). See R. 1:7-4 (requiring a

trial judge to accompany all opinions with findings of fact and

conclusions of law). The omission of critical factual findings,

supporting the basis to supplement the Guidelines support award,

impedes our review and requires a remand limited to this issue.

See Ducey v. Ducey, 424 N.J. Super. 68, 74 (App. Div. 2012).

C.

Defendant next suggests the court failed to make adequate

findings of fact and conclusions of law regarding its

distribution of the parties' marital property. Defendant urges

reversal of FJOD provisions permitting plaintiff to retain her

26 A-4565-12T4
retirement accounts and permitting each party to retain the

marital property in his or her possession. We reject these

arguments.

"[T]he goal of equitable distribution . . . is to effect a

fair and just division of marital [property]." Steneken v.

Steneken, 183 N.J. 290, 299 (2005) (citation and internal

quotation marks omitted). To fashion an equitable distribution

award, the trial judge must identify the marital assets,

determine the value of each asset, and then decide "how such

allocation can most equitably be made." Rothman v. Rothman, 65

N.J. 219, 232 (1974). In addition, the judge must consider, but

is not limited to, the sixteen statutory factors set forth in

N.J.S.A. 2A:34-23.1. Fashioning an equitable distribution of

marital assets and debts requires more than simply "mechanical

division"; it requires a "weighing of the many considerations

and circumstances . . . presented in each case." Stout v.

Stout, 155 N.J. Super. 196, 205 (App. Div. 1977).

The trial judge properly reviewed all the evidence and

performed the three-step Rothman analysis. Specifically

discussing plaintiff's IRA and two 401(k) accounts, the judge

noted "significant portions," that is two of three accounts,

were "pre-marital," and not subject to equitable distribution.

See Painter v. Painter, 65 N.J. 196, 214 (1974) ("[A]ny property

27 A-4565-12T4
owned . . . at the time of marriage will remain [] separate

property of such spouse and . . . will not qualify as an asset

eligible for distribution."). The third account resulted from a

job held for approximately fourteen months. The court

acknowledged the exact values of plaintiff's retirement assets

were "[u]nknown" and, also stated "[n]o evidence was presented

as to the value of [d]efendant's . . . companies."

Defendant identifies nothing in this record to refute the

judge's conclusions the assets held in the parties' respective

possession had limited value and, therefore, should be offset.

Her opinion noted "the parties agree that there is little by way

of assets or liabilities to divide." On this record, we cannot

conclude the judge erred in implementing the practical approach

of offsetting these minimal assets.

Regarding personal property, the parties separated in 2010.

Each argued the other took significant personalty. The judge

found the parties' respective assertions of undivided assets

were unsupported. Specifically, defendant offered "[n]o proofs

as to the value of the furniture or wedding gifts" he claimed

plaintiff took, and plaintiff did not provide support for her

claims defendant retained a Rolex watch, a Tiffany wedding band,

and expensive electronics (although she produced an email

exchange showing defendant took the marital bedroom and dining

28 A-4565-12T4
set). Following review, with the proofs in equipoise, we find

no error in denying additional relief. Pacifico v. Pacifico,

190 N.J. 258, 269 (2007).

In light of our opinion, we need not separately review the

appeal of the order denying reconsideration. As noted, the

judge's findings regarding imputation of income to fix support

will not be disturbed, except sums added as supplemental

support, which must be vacated. We reverse that limited

provision of the FJOD and remand for further review. On remand,

the judge must consider the propriety of adding child-care costs

and whether good cause for a separate allocation of specific

extracurricular activities is warranted. To the extent

defendant paid unsupported child-care or activity expenses, the

judge shall determine the applicable credit and the method for

repayment. Finally, we reject claims of error in the FJOD's

provisions providing for equitable distribution.

Affirmed in part, reversed, and remanded in part.

29 A-4565-12T4