B.G. VS. E.G. (FM-20-1592-14, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0830-16T1

B.G.,

Plaintiff-Respondent/
Cross-Appellant,

v.

E.G.,

Defendant-Appellant/
Cross-Respondent.
___________________________________

Submitted March 21, 2018 – Decided August 31, 2018

Before Judges Fuentes, Koblitz and Suter.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FM-20-1592-14.

Weinberger Law Group, LLC, attorneys for
appellant/cross-respondent (Jessica Ragno
Sprague, on the brief).

Steven H. Wolff, attorney for respondent/cross-
appellant.

PER CURIAM

Defendant E.G. appeals from the custody, alimony, child

support, equitable distribution, and life insurance portions of
the September 21, 2016 Final Judgment of Divorce (FJOD).1

Plaintiff B.G. cross-appeals the equitable distribution and

attorney fee provisions of the FJOD.

We reverse the child support calculation set forth in the

September 21, 2016 child support order, which contained a clerical

error, and order a correction to conform that order to the FJOD.

We reverse the court's denial of a credit to defendant against his

pendente lite support arrears from August 2014 to October 2014 of

$8700, reducing the arrears for that period by $4,429.68 for a

total of $4,270.32.2 We vacate the FJOD's requirement that the

parties live within fifteen miles of each other. We reverse the

inclusion in equitable distribution of any property that defendant

acquired from Ophthotech after April 1, 2014, the date after the

divorce complaint was filed, and the court's order that plaintiff's

credit card debt be paid jointly from marital assets. We also

remand to the trial court to enter an order clarifying which party

pays for maintenance and expenses of the marital home. We affirm

all the remaining issues.

1
We use initials in the caption for the litigants and fictitious
names for the children to maintain their privacy. R. 1:38-3(d)(13)
2
This is not intended to affect any other arrears that occurred
after October 2014.

2 A-0830-16T1
 I.

A.

The parties were married in May 2000, although they started

dating in 1988, and resided together sometime between 1992 and

1994. They have four children: Mary, born in 1994; Edward, born

in 2000; Quincy, born in 2003; and Jane, born in 2008. Mary was

emancipated by the time the court entered the FJOD.

At the time of the divorce trial, plaintiff was forty-six and

a full time homemaker. Defendant was forty-eight, then unemployed,

having most recently been employed as the director of drug product

manufacturing for a drug company where he earned an annual salary

of $175,000. Since December 2015 through the trial, he was

collecting $636 per week in unemployment benefits. Both parties

are college educated. Plaintiff's degree is in computer

technology. She worked for seven years before the marriage. She

has not been employed since 1999. Her highest income was $44,318

in 1999.

Quincy suffers from autism and pervasive developmental

delays, and requires constant supervision because of his impulse

control and anger and frustration problems. He attends a

specialized school, the expense of which is provided through the

school district until he is twenty-one. It is expected he will

require continued care in the future.

3 A-0830-16T1
 Plaintiff filed for divorce on April 1, 2014. Following a

twenty-three day trial, the trial court entered a FJOD on September

21, 2016, accompanied by an eighty-three page written letter

opinion. Defendant appealed the FJOD, and plaintiff filed a cross-

appeal.

B.

No one disputed the trial court's finding that the parties

suffered "irreconcilable differences for more than six months

prior to the trial" and were entitled to a divorce. The FJOD

awarded joint legal custody of the three minor children to

plaintiff and defendant. It designated plaintiff as parent of

primary residence (PPR) of Quincy and Jane. Defendant was

designated the PPR of Edward and granted parenting time with Quincy

and Jane. Plaintiff did not immediately have parenting time with

Edward, but the FJOD ordered reunification therapy in its stead.

The parties do not appeal the parenting time schedule or the order

for reunification therapy.

In ordering custody, the court found the testimony of the

court-appointed expert, Dr. William Campagna, to be "credible and

sensible" and gave it considerable weight. He testified the family

was "very dysfunctional" and there was "considerable disagreement"

between the parties.

4 A-0830-16T1
 The court interviewed the children with the exception of

Quincy. Mary and Edward wanted to live with their father, citing

a number of incidents not favorable to their mother, including

that she was verbally demeaning and critical, a food hoarder, and

treated the children inconsistently by favoring the younger

children. Edward said that one time plaintiff slapped him and

made him sleep on a mattress on the floor. The court recounted

that Jane "spoke lovingly of her mom in a sincere and heartfelt

credible way."

Dr. Campagna recommended plaintiff as the PPR for Quincy, who

was doing well in the special school he was attending. He also

recommended that Quincy remain in the marital home, if financially

possible, so that he would only have minimal changes. The court

considered testimony from Quincy's school psychologist, nurse at

Children's Specialized Hospital, and a school social worker, all

of whom testified they had more interaction with plaintiff than

defendant regarding Quincy.

The court found it was in the best interests of the children

for plaintiff to be the PPR for Quincy and Jane, and defendant the

PPR for Edward. The court analyzed the factors under N.J.S.A.

9:2-4, and found the parties "have no ability to agree,

communicate, or cooperate in matters relating to the children."

Although both wanted custody of the three unemancipated children,

5 A-0830-16T1
Edward's relationship with his mother was strained, according to

Dr. Campagna. The judge was able to confirm Dr. Campagna's

psychological assessment of Edward's relationship with his mother

when the judge interviewed the children. Edward did not want to

"speak to or engage in therapy with his mother at this time."

Plaintiff had accepted Dr. Campagna's custody plan that Edward

reside with his father. Jane had a good relationship with her

mother and, depending on plaintiff's job, plaintiff may have more

parental availability for her. The parties did not have a history

of domestic violence.

The court indicated that the testimony by Mary and Edward

about their mother was "of serious concern" to the court, and that

all the children had been "hurt and harmed by the dysfunction of

their parents' divorce," but it did not find they had "suffered

any physical abuse by either party." The court found that the

children "appear to be safe with both parents."

The court agreed with the custody recommendations of Dr.

Campagna that Edward reside with defendant, and Jane and Quincy

reside with plaintiff. She has been the primary caretaker for

Quincy, and Jane has a close relationship with her. It ordered

co-parenting counseling and reunification therapy for a more

stable environment for the children. Quincy was stable in his

current school as were the other children. The court found that

6 A-0830-16T1
this custody arrangement "advances all the children's educational

needs." Neither parent was found to be unfit, but their animosity

toward each other was "not benefiting any of the children."

The court considered the geographic proximity of the parents,

who at the time were residing together in the marital home.

Plaintiff wanted to continue to reside there and to be near

Quincy's school. Dr. Campagna opined that the parents needed to

live within a thirty-minute drive from each other. He noted that

the children would be attending three different schools. Based

on Dr. Campagna's testimony and the fact that the children had

daily exposure to both parents at the time of the trial, the court

ordered that the parties were "not to move more than [fifteen]

miles from each other going forward in order to further parenting

time between each parent and all of the children." The court

considered that each parent was spending "extensive time with all

of the children."

The court considered the factors under N.J.S.A. 2A:34-23.1

in making equitable distribution of the parties' marital property.

It placed the burden of establishing that property acquired during

the marriage was immune from equitable distribution on the party

that asserted the immunity.

The parties had a fourteen-year marriage, but the court noted

they had been a monogamous couple for nearly twenty years. They

7 A-0830-16T1
were in good health with "no documented proof of emotional

instability." Neither had brought property into the marriage.

They had no pre-nuptial agreement.

The court found they had a "squarely middle class" standard

of living. The parties relied primarily on defendant's income

throughout the marriage which averaged $132,642 from 2010-2014.

Defendant also had a limited liability company (LLC) through which

he purchased investment properties. They took vacations, although

not "extravagant ones," and did not shop at "fine stores." At the

time of trial, defendant had lost his job and was collecting

unemployment. He claimed to have borrowed money from his mother

and a friend to pay for household expenses. The court considered

their case information statements showing that "their lifestyle

spending exceeded what it should have" based on the parties' annual

income in concluding "neither party will be able to maintain the

marital lifestyle going forward."

They had four investment properties in Pennsylvania and one

in Buffalo, New York. These were used for rental income; only one

had a mortgage. The court found the ownership of the properties

allowed the parties "to deduct a portion of the parties' household

expenses and vehicles from their income taxes." Although they did

not dispute the values of the properties or that the properties

8 A-0830-16T1
were capable of producing income, the court ordered an appraisal

of the properties.

One of the properties, purchased in 2002, was rented to

defendant's mother for $775 per month. Defendant claimed that in

2013, the LLC transferred title to his mother and that she no

longer pays rent. He did not recall telling plaintiff about the

transfer, nor was there a deed to evidence it.

The court appointed Dr. Charles Kincaid, a vocational

rehabilitation specialist, to evaluate plaintiff's future

employability because she had not been in the workforce for

fourteen years. He opined she could return to work with training.

He identified three job areas, which included computer programing,

teaching, and employment as an administrative assistant.

The court found plaintiff credible that it would be difficult

for her to return to the job market given the number of years she

had not worked, the need for retraining, and her child care

responsibilities, especially for Quincy. It discounted as not

entirely credible or reliable, Dr. Kincaid's analysis because he

did not take into consideration plaintiff's child care issues or

commute. The court found most credible his opinion that plaintiff

was employable as an administrative assistant, earning

approximately $39,000 per year, which was the amount of income

that the court imputed to plaintiff.

9 A-0830-16T1
 The court found defendant had the "greater earning capacity"

based on his employment history. During the five years before the

divorce complaint was filed, including 2014, their joint tax

returns showed an average income of $132,642. After the complaint

was filed, he worked with a firm (Ophthotech) where he earned

$175,000, as well as vested and unvested stock, bonuses and a

severance package. However, that company had given him three

options: to continue with it on a "performance plan," accept less

income and transfer to Colorado, or separate from the company with

a severance package. He chose the latter. The court found he was

employable in the pharmaceutical or real estate fields, that his

unemployment was voluntary and imputed an annual income to him of

$132,642.

The court considered that plaintiff had worked before they

were married and afterwards contributed to defendant's "high

earning power" by "caring for the household and the four children."

Defendant was laid off from Merck just days before plaintiff

filed for divorce. His $50,000 severance package was received

shortly after the complaint was filed. Defendant testified that

he used those funds to pay a Pennsylvania attorney for work in

connection with the investment properties, but he did not provide

written evidence to substantiate that testimony. As such, the

10 A-0830-16T1
court found that the Merck severance was subject to equitable

distribution, and awarded $25,000 to plaintiff.

The court found that it would be "detrimental" and not in the

best interest of Jane or Quincy to be removed from their current

schools, concluding that plaintiff had a need to continue to occupy

the marital home until Jane graduated high school. After that,

the court ordered the marital residence to be sold and the proceeds

divided evenly between the parties.

The court considered the parties' debt. There was only one

mortgage of $62,954 on the rental properties, although the marital

property was mortgaged for $396,500. Defendant had a number of

loans. He claimed his mother loaned him a total of $73,450

beginning in August 2011. Defendant's mother testified about an

itemized listing of these loan amounts, but the list was not

notarized or witnessed. She testified their agreement was made

in "private." At the time of trial, none of these loans had been

paid back.

Defendant testified that a friend of his, Jerry Stern, loaned

him $30,000 that he used to pay a litigation fund, which had been

ordered by the court to pay marital debt and his pendente lite

support obligation to plaintiff. He also claimed to have a loan

from Wells Fargo Bank.

11 A-0830-16T1
 The court ordered that defendant was solely responsible to

repay these loans because there was no proof of the purpose of the

loans, he had not discussed them with plaintiff and the loan

documents related to the Jerry Stern loan were "self-authored and

self-serving."

Both parties had credit card debt. Plaintiff testified she

had to take out a credit card during the divorce to cover Schedule

C expenses because defendant failed to pay his $2900 per month

pendente lite support. The court ordered that all of the parties'

credit card debt was to be paid from the proceeds following sale

of their investment properties.

Pursuant to a June 27, 2014 court order, defendant was

required to pay $2900 in pendente lite support to plaintiff for

Schedule C expenses, including food, medical insurance, clothing,

activities, and debt services for the family. In October 2014,

the court ordered defendant to pay $100 per week through wage

garnishment for pendente lite support arrears of $8700.3 At trial,

defendant contended he was not in arrears, having made payments

between July 2014 and October 2014 for Schedule C items. He

proffered supporting bank records and credit card statements. He

claimed that plaintiff was accumulating the pendente lite payments

3
The parties have not included this order in the record.

12 A-0830-16T1
to use for attorney's fees. She acknowledged she was thinking

about this but had not done so. The court denied defendant's

request for a credit, finding that the payments presented at trial

did not show that he was not $8700 in arrears.

The court found that the parties' real estate was acquired

during the marriage and was subject to equitable distribution.

The court did not find credible the testimony that one of the

investment properties had been gifted to defendant's mother. The

court found defendant did not meet his burden of showing that

property was immune from distribution and found instead that "the

transfer was a dissipation of a marital asset." The court ordered

that property also was to be sold and the proceeds divided evenly

between the parties. The court further ordered that all the

properties, save for the marital home, were to be sold and

appointed an agent to market and sell the properties. The monies

were to be held in escrow pending payment of marital debt. The

court ordered that the marital home was not to be sold until Jane

graduated high school, and then, the proceeds were to be divided

fifty-fifty. The court's order divided the motor vehicles and

bank accounts.

Defendant also had three retirement accounts. One account

was pre-marital and not subject to equitable distribution. The

court ordered the even distribution of the other two; one from

13 A-0830-16T1
Merck and one from Ophthotech, subject to qualified domestic

relations orders, with a credit to plaintiff for any invasion of

these funds for litigation.

Plaintiff requested open durational alimony, but defendant

only wanted to pay rehabilitative alimony. In evaluating the need

for alimony, the court considered the factors in N.J.S.A. 2A:34-

23(b) and (c). The court noted the parties had been a couple

living together as husband and wife since "1992 or 1994,"

"dependent on one another financially." Plaintiff contributed to

defendant's career by caring for the household and the four

children; she did not maintain her career readiness. The

caretaking responsibilities for the children were primarily

plaintiff's, particularly for Quincy. Plaintiff was imputed

income, but realistically her available jobs are "limited by her

caretaking responsibilities." Defendant also would have

caretaking responsibilities, but they were not as demanding as

plaintiff's. The court considered that the parties needed separate

residences and that they had a middle class lifestyle but that

neither could maintain that lifestyle going forward.

Defendant was ordered to pay $3500 per month in open

durational alimony because the court found exceptional

14 A-0830-16T1
circumstances to adjust the duration of the alimony.4 With respect

to the duration, the court considered that the parties lived

together "in an economically exclusive supportive relationship

since 1992," which the court considered as equivalent to a long-

term marriage of over twenty years. The court also considered

Quincy's severe autism and plaintiff's primary role in caring for

him. With respect to the amount of alimony, the court considered

plaintiff's need for alimony and defendant's ability to pay it

based on their work histories, standard of living, ages, health,

earning capacities, investment properties, and parental

responsibilities. The court also considered the time and expense

for plaintiff to be retrained before going into the workforce, the

equitable distribution of property, income available to the

parties, tax treatment of any alimony award, the amount of pendente

lite support, the parties' case information statements, and

testimony about expenses. Given all of this, the court considered

that defendant could pay $3816 per month in alimony but reduced

it to $3500 per month in open durational alimony in light of his

custody of Edward.

4
There was a subsequent ability to pay hearing, resulting in an
order dated April 10, 2018, that reduced the amount of alimony to
$2420 per month with child support of $232 per month, for a total
to be paid by defendant of $2652 per month.

15 A-0830-16T1
 The court applied the Child Support Guidelines in determining

the amount of child support. The court found that defendant's

child support obligation for Quincy and Jane was $190 per week and

plaintiff's child support obligation for Edward was $221 per week,

for a net obligation by plaintiff to defendant of $31 per week.

The child support order mistakenly said the opposite- that

defendant owed child support to plaintiff of $31 per week.

The court ordered the parties to share equally the costs of

"summer camp, school uniforms, children's lessons and sports, and

other extracurricular activities." The court noted the equal

division reflected their imputed incomes after alimony. The court

also addressed college expenses following its review of the factors

set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).5

Defendant requested an adjustment of his alimony obligation

to reflect the $2900 per month pendente lite support payments he

made up to February 2016, when he became unemployed. The court

denied this, finding the two awards, alimony and pendente lite

support, were similar in amount, that plaintiff had no ability

pre-divorce to pay expenses without income, and no credit was

appropriate because defendant was voluntarily unemployed.

5
We have not detailed this part of the FJOD because neither party
raises issues about it in the appeal.

16 A-0830-16T1
 The court ordered defendant to maintain $350,000 in life

insurance to secure his alimony obligation with plaintiff as

beneficiary and $250,000 in life insurance with the minor children

as beneficiaries, including Quincy. There was no similar

obligation for plaintiff.6

The court denied both parties' requests for attorney's fees.

The court analyzed the factors under RPC 1.5(a) and Rule 5:3-5(c),

finding that neither party acted more reasonably than the other,

both parties unnecessarily increased the amount of outstanding

attorney's fees, and both parties were successful on some counts

and unsuccessful on others.

C.

On appeal, defendant contends the trial court erred by not

giving more weight to the testimony of the children when

considering the custody of the two younger ones. He argues the

trial court should not have restricted the residential location

of the parties by ordering them to reside within fifteen miles of

each other. Defendant urges us to reverse the alimony award

because the court erred in considering the time period before they

were married in granting open durational alimony for a period of

6
The parties did not take issue with the court's order regarding
alternating tax exemptions for the children, or defendant's
obligation to provide health insurance for the children.

17 A-0830-16T1
time longer than they were married, and erred by trying to equalize

their incomes and by not addressing their needs and ability to

pay. Defendant asserts the child support order contains an error.

It orders defendant to pay child support to plaintiff when the

FJOD orders plaintiff to pay child support to defendant. Defendant

also challenges the court's separate treatment of certain

extracurricular expenses, requiring the parties to share these

equally when they are included in the child support amount.

Defendant disputes the awarded equitable distribution, arguing

that the marital residence should be sold now and not when the

youngest child graduates high school. He claims the court erred

by ordering the sale of the house he transferred to his mother,

by including certain post-complaint assets in the distribution,

by including plaintiff's credit card debt, and by not granting him

certain credits.

Plaintiff's cross-appeal claims their property should not

have been divided on a fifty-fifty basis and that the court erred

by not awarding her request for attorney's fees.

II.

"[W]e accord great deference to discretionary decisions of

Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197

(App. Div. 2012), in recognition of the "family courts' special

jurisdiction and expertise in family matters." N.J. Div. of Youth

18 A-0830-16T1
& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting

Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We are bound by the

trial court's factual findings so long as they are supported by

sufficient credible evidence. N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of

J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). However, "[a]

trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special

deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014)

(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

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

A.

Defendant contends the trial court erred by failing to give

sufficient weight to the "probative testimony" of Mary and Edward

in determining custody of Jane and Quincy. We discern no abuse

of discretion.

In a custody determination, the best interest of the child

is fundamental. D.A. v. R.C., 438 N.J. Super. 431, 450 (App. Div.

2014). The court is to apply the factors set forth in N.J.S.A.

9:2-4 in its evaluation. Ibid. Included in these factors, is

"the preference of the child when of sufficient age and capacity

to reason so as to form an intelligent decision." Id. at 456.

Although "[t]he child has a right to be heard and voice an opinion

19 A-0830-16T1
to the finder of fact and ultimate decision-maker[,] [t]he court

need not be bound by the child's view." Mackowski v. Mackowski,

317 N.J. Super. 8, 12 (App. Div. 1998). 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, and credible evidence in the record." Cesare, 154

N.J. at 412.

Here, a review of the thorough opinion of the trial court

shows that it took into consideration all of the statutory factors

and interviewed each of the children except Quincy. The court

specifically discussed Edward and Mary's negative in-chambers

testimony about their mother. The trial court noted its suspicion,

however, that the children were rehearsed and coached because of

the consistency of their testimony. Nonetheless, the court did

not "discount their sincere testimony and preferences." The court

evaluated the testimony of the court appointed expert, who was

found to be credible and sensible and who recommended the custodial

arrangement that the court ordered. Our review shows there is

substantial credible evidence in the record to support the trial

court's order regarding custody, that the court gave adequate and

appropriate weight to the testimony of Edward and Mary, and did

not abuse its discretion in entering the custody order.

20 A-0830-16T1
 B.

Defendant contends the court erred by restricting them from

moving more than fifteen miles away from each other. He asserts

this violated his constitutional rights. Although we do not agree

that the provision infringed a constitutionally protected right

to travel, we do agree that it was not supported by substantial

credible evidence in the record and remand for vacation of that

provision.

The court ordered the parties "shall not move more than

[fifteen] miles away from each other in order to further parenting

time between each parent and all of the children." Dr. Campagna

testified it would be "optimal if the children did not change

their friends, their locations, their habits." With respect to

the distance between residences, it was his opinion, although

"completely subjective," that "[i]f it's more than a half hour

. . . it becomes problematic." In ordering the fifteen mile

limitation, the court considered this testimony, the children's

testimony, the fact that the children had daily exposure to both

parents, and that the parents spent extensive time with them.

Recently, the Court has clarified that the best interest

standard applies in reviewing an application under N.J.S.A. 9:2-2

by a custodial parent to remove a minor child to a jurisdiction

outside of New Jersey. Bisbing v. Bisbing, 230 N.J. 309, 322

21 A-0830-16T1
(2017). Relocation within the State is not subject to N.J.S.A.

9:2-2. Schulze v. Morris, 361 N.J. Super. 419, 426 (2003).

However, "the relocation of a child by the residential custodial

parent from one location in New Jersey to another may have a

significant impact upon the relationship between the child and the

non-residential custodial parent that may constitute a substantial

change of circumstances warranting modification of the custodial

and parenting-time arrangement." Ibid.

Here, the fifteen-mile limitation in the FJOD was addressed

to advance the children's interests in maintaining contact with

both parents once the divorce was final. However, the limitation

was not supported by substantial credible evidence in the record.

Dr. Campagna only discussed his view of the optimal driving time

between residences and acknowledged it was subjective. No one

testified about a geographic limitation. The court also did not

find that the limitation was in the children's best interests.

The court did not explore whether there were other methods to

maintain contact and, given the dysfunctional nature of the family

relationships, made no finding that this limitation was necessary

for the children. We therefore reverse and remand for vacation

of that provision of the FJOD.

That said, however, we do not find a constitutional violation.

The fifteen-mile limitation did not restrict defendant's right to

22 A-0830-16T1
travel. See Bisbing, 230 N.J. at 336. He did not argue what

other constitutional rights were implicated, and we decline to

speculate about that issue.

C.

Defendant contends the alimony award is inconsistent with law

and fact, arguing that the trial court erred in granting open

duration alimony, erred in failing to address need and ability to

pay alimony, and erred in failing to give him a credit toward his

pendente lite arrears.

Alimony awards are not disturbed on appeal if the trial

judge's conclusions are consistent with the law and not "manifestly

unreasonable, arbitrary, or clearly contrary to reason or to other

evidence, or the result of whim or caprice." Foust v. Glaser, 340

N.J. Super. 312, 316 (App. Div. 2001). The question is whether

the trial judge's factual findings are supported by "adequate,

substantial, credible evidence" in the record and the judge's

conclusions are in accordance with the governing principles.

Ibid.; accord Gnall v. Gnall, 222 N.J. 414, 428 (2015).

Defendant asserts the alimony award should have been limited

in length to no more than the marriage itself and that the trial

court erred by using the parties' relationship prior to marriage

as an exceptional circumstance to warrant open duration alimony.

Although we agree with defendant that the parties' relationship

23 A-0830-16T1
prior to marriage in itself was not an exceptional circumstance

under N.J.S.A. 2A:34-23(c), we nonetheless agree with the trial

judge that exceptional circumstances were demonstrated on this

record without consideration of the pre-nuptial relationship.

"[T]he goal of a proper alimony award is to assist the

supported spouse in achieving a lifestyle that is reasonably

comparable to the one enjoyed while living with the supporting

spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16

(2000). It is "critical" and "essential" to "[i]dentify[] the

marital standard of living at the time of the original divorce

decree . . . regardless of whether the original support award was

entered as part of a consensual agreement or of a contested divorce

judgment." Id. at 25. In awarding alimony, the judge must

consider the thirteen factors enumerated in N.J.S.A. 2A:34-23(b),

along with any other factor deemed relevant.

N.J.S.A. 2A:34-23(c) limits the duration of alimony to the

length of the marriage where the duration of the marriage is less

than twenty years, unless certain "exceptional circumstances" are

present. It states:

For any marriage or civil union less than 20
years in duration, the total duration of
alimony shall not, except in exceptional
circumstances, exceed the length of the
marriage or civil union. Determination of the
length and amount of alimony shall be made by
the court pursuant to consideration of all of

24 A-0830-16T1
 the statutory factors set forth in Subsection
b of this section.

[(emphasis added).]

The statute lists a number of exceptional circumstances that may

require an adjustment to the duration of the alimony including:

"4) [w]hether a spouse or partner has given
up a career or a career opportunity or
otherwise supported the career of the other
spouse or partner;

. . . .

6) The impact of the marriage or civil union
on either party's ability to become self-
supporting, including but not limited to
either party's responsibility as primary
caretaker of a child;

. . . .

8) Any other factors or circumstances that the
court deems equitable, relevant and material.

[N.J.S.A. 2A:34-23(c).]

Here, there was substantial credible evidence in this record

to support the finding of exceptional circumstances. The court

"coupled" its decision on duration of the relationship, during

which a child was born, with plaintiff's caretaking

responsibilities for Quincy. By all accounts, Quincy has pervasive

developmental delays. He can be physically difficult to deal

with; he attends a special school. Likely, special arrangements

will be needed for him after he reaches age twenty-one. The

25 A-0830-16T1
caretaking responsibilities "primarily belonged to plaintiff," and

plaintiff has limited job availability because of her future

caretaking responsibilities for Quincy and her need for

retraining. She also has responsibilities for another minor child.

Defendant also contends the trial court failed to meet the

requirements of the statute when it determined the amount of

alimony. We discern no error. The trial court methodically and

thoroughly addressed all of the factors under N.J.S.A. 2A:34-

23(b). The judge considered the parties' case information

statements,7 their testimony about lifestyle and financial needs,

the expert witnesses' testimony, and all of the written evidence

in evaluating that the parties' lifestyle was middle class and

that they would not be able to maintain this. Both parties had

childcare responsibilities and responsibilities for separate

households. Both were imputed income. The court's decision on

the type of alimony, duration and amount was fully supported by

the evidence in the record and thoroughly explored and explained

by the trial judge.

Defendant contends the trial court erred in failing to give

him a credit toward pendente lite arrears for July, August,

September and October 2014. He testified that he deposited $2900

7
Their CIS's do not reflect expenses for separate residences,
because they still resided in the marital home during the trial.

26 A-0830-16T1
into their joint account for the July 2014 payment. Plaintiff

testified she may have received this in July but it was for June

2014. Defendant acknowledged that he did not pay $2900 per month

for August, September, or October, but testified about credit card

payments that he made and amounts that he said he deposited and

then she withdrew. These were for Schedule C expenses. The

court's opinion held that defendant had not proven he was not in

arrears for $8700, but gave no other explanation.

The court did not explain why it concluded that defendant did

not prove he paid a portion of the arrears. See R. 1:7-4(a).

Certainly, he did not follow the court's order by paying the monies

to plaintiff, but his unrebutted testimony was that he did pay a

portion of the Schedule C expenses.8 It is not clear why a credit

8
Below is a table of his payments. For the entries from August
2014 to October 2014, defendant testified that he deposited funds
that plaintiff withdrew.

Amount Type Date
$2900 Deposit July 2014
$125 Chase Credit Card July 2014
$125 Chase Credit Card August 2014
$247 Macy's Credit Card August 2014
$93 Macy's Credit Card September 2014
$853.68 Wells Fargo Loan Payment July 2014
$108 Wells Fargo Credit Card July 2014
$125 Chase Credit Card September 2014
$103 Wells Fargo October 2014
$93 Macy's Credit Card October 2014
$200 Deposit/Withdrawal August 2014
$142 Deposit/Withdrawal August 2014

27 A-0830-16T1
was not given. We reverse this aspect of the FJOD and remand for

the entry of an order that credits defendant's arrears for the

months of August, September and October 2014, which totaled $8700,

with $4,429.68, which reflected his testimony.

D.

Defendant contends the trial court's child support orders

were incorrect. He argues the trial court's child support order

is inconsistent with its ruling and the trial court erred in

directing the parties to share in the costs of extracurricular

activities.

The trial court's "[child support] 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." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Jacoby

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

Here, there is an error because the child support order is

not consistent with the FJOD. The order required defendant to pay

$31 per week in child support to plaintiff while the FJOD required

$150 Deposit/Withdrawal September 2014
$150 Deposit/Withdrawal September 2014
$150 Deposit/Withdrawal October 2014
$150 Deposit/Withdrawal October 2014
$165 Deposit/Withdrawal October 2014
$1450 Deposit/Withdrawal October 2014
$4,429.68

28 A-0830-16T1
plaintiff to pay that amount of child support to defendant. We

remand this issue to the trial court for entry of an order

correcting the September 21, 2016 child support order to be

consistent with the FJOD.

Defendant also contends that the trial court erred in

deviating from the child support guidelines by directing them to

share equally the children's expenses for extracurricular

activities. The FJOD ordered that the parties share equally the

"costs of summer camp, school uniforms, children's lessons and

sports, and other extracurricular activities." The court

calculated child support using the Child Support Guidelines.

Typically, school uniforms, lessons or instructions and sports

admissions are included within the child support amount. However,

the guidelines can be adjusted to "accommodate the needs of the

children or the parents' circumstances." The reason for the

deviation is to be specified. Child Support Guidelines, Pressler

& Verniero, Current N.J. Court Rules, Appendix IX-A(3) to R. 5:6A

(2018).

The trial court did not abuse its discretion in ordering that

the extracurricular expenses be divided evenly between the

parties. Although some of these may have been included within the

Guidelines, here, the parties' incomes were imputed and equalized

through the payment of alimony, each paid little in child support

29 A-0830-16T1
because of that equalization, and both were the PPR for minor

children, all of whom presumably will have extracurricular

expenses. On these facts, we cannot say the court misapplied its

discretion in requiring the parties to share these expenses.

Defendant contends that the court erred by not awarding him

a Mallamo credit, pursuant to Mallamo v. Mallamo, 280 N.J. Super.

8, 12 (App. Div. 1995). In Mallamo, we held that a retroactive

modification of pendente lite child support after a full trial did

not violate N.J.S.A. 2A:17-56.23. Here, defendant has not shown

why he would be entitled to a retroactive Mallamo credit.

E.

Defendant contends the trial court erred in awarding

equitable distribution. He argues the trial court should not have

restricted the sale of the marital residence until the youngest

child graduated high school; erred in directing the sale of

property allegedly titled to his mother; erred in including

defendant's post-complaint assets in distribution; erred in

directing that plaintiff's credit card debt be paid jointly from

marital assets; and erred in failing to credit debt toward the

business properties.

We review a trial judge's decisions concerning the allocation

of assets for equitable distribution for abuse of discretion. See

Williams v. Williams, 59 N.J. 229, 233 (1971); Borodinsky v.

30 A-0830-16T1
Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). "The

goal of equitable distribution . . . is to effect a fair and just

division of marital assets." Steneken v. Steneken, 367 N.J. Super.

427, 434 (App. Div. 2004). "In going about this task, the court

must decide what specific property each spouse is eligible to

receive by way of distribution; the value of such property for

purposes of distribution; and how such allocation can most

equitably be made after analysis of the factors set forth in

N.J.S.A. 2A:34-23.1." Sauro v. Sauro, 425 N.J. Super. 555, 572-

73 (App. Div. 2012). The determination need only reflect that the

"trial judge . . . appl[ied] all the factors set forth in N.J.S.A.

2A:34-23.1 and distribute[d] the marital assets consistent with

the unique needs of the parties." DeVane v. DeVane, 280 N.J.

Super. 488, 493 (App. Div. 1995).

For an asset to be subject to equitable distribution, it must

be "property . . . legally and beneficially acquired by [the

parties] or either of them during the marriage." Orgler v. Orgler,

237 N.J. Super. 342, 350 (App. Div. 1989) (alterations in original)

(quoting N.J.S.A. 2A:34-23). N.J.S.A. 2A:34-23 requires the

court, in making an equitable distribution of marital property,

to consider the contribution of each party to the acquisition,

dissipation, preservation, depreciation or appreciation in the

amount or value of marital property.

31 A-0830-16T1
 The court did not abuse its discretion in ordering that the

marital home did not have to be sold until Jane graduated high

school. Where sale of the marital home is delayed, the final

decision "should recognize (1) a fair return for delayed

realization, (2) or an equity interest, and (3) the extent of each

party's contribution to the protection and enhancement of the

asset prior to sale." Daly v. Daly, 179 N.J. Super. 344, 350-51

(App. Div. 1981).

Here, there was expert testimony by Dr. Campagna about the

need to retain the marital home, if financially feasible, for the

children's stability. The court ordered that the parties had a

fifty percent equity interest in the property and were entitled

to fifty percent of the net proceeds upon sale when Jane graduated

high school. However, the court did not clarify which party would

pay for maintenance and expenses, an issue that requires

clarification. We remand that issue to the trial court for

clarification and the entry of a supplemental order.

Defendant contends the trial court erred by ordering the sale

of the property where his mother was residing, arguing that the

title was transferred to her before the divorce complaint was

filed, his mother is not a party to the litigation, and the court

erred by requiring him to prove the asset was exempt from equitable

distribution. The court found that defendant dissipated this

32 A-0830-16T1
marital asset and that the transfer "was conducted without

[p]laintiff's knowledge or consent, even though the property was

purchased with marital funds."

There was no misapplication of discretion or legal error

here. There was no dispute that this property was purchased during

the marriage with marital funds, making the house subject to

equitable distribution. It was defendant's burden to show that

the property was exempt. See Painter v. Painter, 65 N.J. 196, 214

(1974) (providing that the burden of showing that an asset is

exempt from equitable distribution rests with the party claiming

the exemption); Weiss v. Weiss, 226 N.J. Super. 281, 291 (App.

Div. 1988). The record supported the court's order. The court

found plaintiff was not aware of the transfer and did not consent

to it. Defendant did not produce a deed that showed the transfer.

The court found that defendant was "evasive" when testifying about

said property.

Defendant claims that the FJOD should not have included two

post-complaint assets in the property to be distributed. These

include a Wells Fargo bank account and a retirement account from

a post-complaint employer, Ophthotech. "[F]or purposes of

equitable distribution of marital assets, a marriage is deemed to

end on the day a valid complaint for divorce is filed that

commences a proceeding culminating in a final judgement of

33 A-0830-16T1
divorce." Portner v. Portner, 93 N.J. 215, 225 (1983). In this

case, the complaint was filed April 1, 2014.

As for defendant's Wells Fargo account that he claims to have

acquired post-complaint, the trial court found that "[t]here was

no testimony other than that these were all accounts acquired

during the marriage." It was defendant who bore the burden of

proving that this asset was immune from equitable distribution.

Defendant testified he lost his employment with Merck in

March 2014, shortly before the divorce complaint was filed. He

received a $50,000 severance amount either in April or May 2014.

The court was correct to order that plaintiff was entitled to

fifty percent of this amount because his employment with Merck

ended prior to the divorce and the severance amount was earned

then, even if paid later.

After the complaint was filed, defendant was employed by

Ophthotech from August 2014, to when he elected to terminate his

employment with the company rather than take one of the other

employment options it offered him. Assets he acquired from

Ophthotech were not marital assets subject to equitable

distribution. To the extent the court ordered their equitable

distribution, this was error. We remand to the trial court the

issue of excluding any Ophthotech assets from the FJOD.

34 A-0830-16T1
 Defendant contends the trial court erred in directing that

plaintiff's credit card debt be paid from marital assets, arguing

that it was acquired by her post-complaint in lieu of using the

pendente lite support to pay Schedule C expenses. Plaintiff

testified she had to take out a credit card during the divorce to

cover Schedule C expenses.

The judge's order to use marital assets to pay off this debt

is not supported by sufficient credible evidence. Plaintiff

acquired the credit card debt after the complaint was filed.

Although defendant acknowledged that he did not pay the pendente

lite support as ordered, the court did not make any findings that

defendant's required payment of $2900 was not adequate to cover

the Schedule C expenses. Defendant is responsible to pay the

pendente lite arrears less the appropriate credit. If plaintiff's

credit card debt were to be paid from marital assets, defendant

would be paying again for the Schedule C expenses without any

support in the record for this additional payment.

Defendant contends the trial court erred in failing to treat

loans from his mother as part of the debt to be distributed.

However, the court found those loans were "sham loans that exist

on paper only," as "there was no proof of the purpose of the

loans." Here, the record supported the court's findings; it did

35 A-0830-16T1
not abuse its discretion by ordering that defendant is solely

responsible for the "loans" from his mother.

F.

Defendant contends the trial court should not have required

him to provide $350,000 in life insurance to secure the alimony

obligation, because the amount was too large, or $250,000 for his

child support obligation without also ordering the same for

plaintiff. N.J.S.A. 2A:34-25 provides, "[n]othing in this act

shall be construed to prohibit a court from ordering either spouse

or partner to maintain life insurance for the protection of the

former spouse, partner, or the children of the marriage or civil

union in the event of the payer spouse's or partner's death." This

statute authorized the court to require defendant to carry life

insurance to secure his obligations for alimony and child support.

The amount was not unreasonable given the duration of the alimony,

age of the parties, age of the children, and Quincy's disabilities.

That the court also could have ordered plaintiff to carry life

insurance for Edward does not mean that it committed reversible

error by not doing so, particularly given plaintiff's financial

situation and responsibilities at the time the FJOD was entered.

III.

Plaintiff filed a cross-appeal contending that the court

should not have divided the marital property evenly and she should

36 A-0830-16T1
have received an award of attorney's fees. Although a court is

not required to divide assets evenly, it may do so. See Rothman

v. Rothman, 65 N.J. 219, 232 n.6 (1974). Here, there was ample

evidence that the parties' finances going forward was not

sufficient to meet their marital lifestyle. Given this financial

picture, the court did not abuse its discretion in equalizing the

parties' finances for the future.

Plaintiff argues the court erred by not awarding her counsel

fees. The assessment of attorney's fees is an issue left to the

sound discretion of the trial court. Tannen v. Tannen, 416 N.J.

Super. 248, 285 (App. Div. 2010). "We will disturb a trial court's

determination on counsel fees only on the rarest occasion, and

then only because of clear abuse of discretion." Strahan v.

Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). Here, the

court properly analyzed the factors under Rule 5:3-5(c) and RPC

1.5 in determining not to award counsel fees, and its decision is

fully supported by the credible evidence.

Affirmed in part; reversed in part and remanded. We do not

retain jurisdiction.

37 A-0830-16T1