R.J.E. VS. R.I.E. (FM-18-0336-19, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-4592-19

R.J.E.,

Plaintiff-Respondent,

v.

R.I.E.,

Defendant-Appellant.
_______________________

Submitted May 5, 2021 – Decided August 24, 2021

Before Judges Vernoia and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0336-19.

Bilal Hill, attorney for appellant.

Henricks & Henricks, attorneys for respondent R.J.E.
(Patricia M. Love, on the brief).

Lyons & Associates, PC, attorneys for respondent Sara
E. Kucsan (Sara E. Kucsan, of counsel and on the brief).

PER CURIAM
 In this matrimonial matter, defendant R.I.E.1 appeals from the March 12,

2020 Judgment of Divorce (JOD), the July 16, 2020 amended JOD (AJOD), and

pendente lite orders entered on August 16 and September 13, 2019. She also

challenges certain evidentiary rulings rendered during the parties' four-day

divorce trial. We affirm.

Defendant and plaintiff R.J.E. were married in May 1995. No children

were born of the marriage, but both parties have adult children from prior

relationships. Plaintiff is seventy-seven years old; defendant is sixty-seven

years old.2

During the marriage, defendant was the primary wage earner for the

family, working as a critical care nurse. In 2017, she grossed approximately

$182,000. Plaintiff performed building and construction work during the early

years of the parties' marriage, but in 2003, he suffered a stroke and stopped

1
We use initials for the parties and others involved in this case to protect the
privacy of the parties. R. 1:38-3(d)(10).
2
Defendant testified at trial she was born in 1954, but during cross-examination,
she acknowledged her initial case information statement (CIS) reflected she was
born in 1958, as did her driver's license, marriage certificate, auto insurance
declaration page and a previous health insurance card. She admitted the errors
in her government-issued records and insurance documents were known to her,
but she "did it for vanity purposes," and because "it's just for clerical s tuff."
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driving that same year. He subsequently retired and was receiving $638 per

month from his Canadian government pension at the time of trial.

Defendant's November 2019 CIS reflected that the parties' marital

lifestyle budget totaled over $14,000 per month, whereas her personal current

lifestyle budget was calculated to be slightly over $12,200 per month.

According to defendant, plaintiff "never contributed to the marital expenses."

Plaintiff's November 2019 CIS did not include a marital lifestyle budget, but his

personal budget was calculated to be roughly $5300 per month, which included

$1280 worth of expenses for a "caregiver" and adult day care.

Plaintiff filed a complaint for divorce in September 2018. Three months

later, defendant filed an answer without a counterclaim. During the initial stage

of the divorce proceedings, the parties lived together, albeit in separate areas of

the marital home, just as they had for several years prior to their divorce

proceedings. In April 2019, following an argument, the police were called to

the parties' home. Each party secured a temporary restraining order (TRO)

against the other, but plaintiff was restrained from the home.3 A family friend,

3
The record reflects plaintiff also was charged with assault following this
incident, but a municipal court judge found plaintiff was "not capable of
standing trial" on the offense, after considering a certification submitted by
plaintiff's neurologist.

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3
E.S., retrieved plaintiff from a Holiday Inn the next day, after plaintiff left a

message on her answering machine, advising he was "thrown out of [his] house"

and he did not know where he was.

The parties subsequently dismissed their TROs and entered into a consent

order which provided defendant with "exclusive possession of the marital home

pending resolution of the divorce" and restrained plaintiff from contacting her.

From April 2019 until October 2019, plaintiff lived with E.S., and then relocated

to Canada to live with his daughter. He was awaiting placement in either a

nursing home or "memory care" facility at the time of trial.

At a case management conference on June 24, 2019, defendant's attorney

sought to amend defendant's pleadings to include a Tevis4 count. The court

granted him a brief period to file a motion to formally request the amendment.

Also, during the case management conference, defendant's attorney stated he

needed more time to prepare for trial, in part, because plaintiff was "going

through a mental evaluation in connection with his criminal charges." Counsel

stated, "I think we need to get the results of that before [plaintiff] can stand trial

in this matter." Plaintiff's attorney acknowledged plaintiff was due to see a

neurologist in September 2019. The judge asked the parties' attorneys if they

4
Tevis v. Tevis, 79 N.J. 422 (1979).
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4
had discussed using a guardian ad litem (GAL). The following exchange ensued

between the judge and counsel:

COURT: I took [plaintiff's TRO] application . . . . I do
recall that he had significant difficulty in remembering
dates and times. I mean, significant. The court, you
know, with all due respect --

DEFENDANT'S COUNSEL: Your Honor --

COURT: -- I mean, I was very patient, and I really
tried, but the court does recall that he had significant
issues with his memory . . . .

DEFENDANT'S COUNSEL: Yes. And then when we
started the TRO trial, the judge kept referring to him as
a party and he kept responding that he didn't attend a
party. And it just went back and forth for five minutes.
I just don't know how we can conduct a trial like that.

COURT: Right.

DEFENDANT'S COUNSEL: I do know my adversary
here is his power of attorney. So, she's almost his de
facto [GAL].

PLAINTIFF'S COUNSEL: No, I'm not his power of
attorney.

DEFENDANT'S COUNSEL: Oh, I thought you were.
Okay.

PLAINTIFF'S COUNSEL: There is a power of
attorney who is a friend with whom he's staying
because of the TRO having been filed. Basically, he
had nowhere else to go.

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5
COURT: Right.

PLAINTIFF'S COUNSEL: And so, he's living with her
until this is resolved.

COURT: I mean, is there an objection to -- let's step
back. Is there money to pay for a [GAL]?

PLAINTIFF'S COUNSEL: I don't -- my client has
nothing.

COURT: That's the other issue.

PLAINTIFF'S COUNSEL: Yes.

COURT: Is there an objection to a [GAL] being
appointed at this time on the court's own motion? And
we would really have to see if somebody could do it on
a pro bono basis.

DEFENDANT'S COUNSEL: Not if it's going to cost
my client money, no.

COURT: I said we'd have to see about it being on a pro
bono basis.

DEFENDANT'S COUNSEL: No objection, Your
Honor.

PLAINTIFF'S COUNSEL: There's no objection by me.

COURT: I think that could assist in trying to resolve
the matter. Okay. You know what, I think, rather than
do a pretrial order, let's just do an order appointing a
[GAL] for the plaintiff, indicating that discovery is to
be completed in accordance with [the previously
assigned judge's] order but no later than August 15th
for all discovery. Defendant to file a motion to amend

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6
 the complaint by July 8th. I'm not going to assign trial
dates. I'm going to schedule it . . . for another pretrial
conference in August. How's that? And we can see
where we're at.

DEFENDANT'S COUNSEL: Okay, Your Honor.

The trial court entered an order that day, to which counsel affixed their

signatures. The order provided: "[t]he court hereby appoints a [GAL] for the

plaintiff, upon consent." On August 6, 2019, the judge entered a supplemental

order specifically naming a GAL. The August 6 order confirmed the GAL was

assigned "to represent the interests of the plaintiff." Notwithstanding

defendant's position on appeal that the GAL's "appointment was predicated on

it not costing [defendant] any money," the above exchange confirms the trial

court was willing to explore a pro bono appointment but did not direct that the

GAL would serve without compensation. In fact, neither the June 24, nor the

August 6, 2019 order contains such a proviso, and defendant did not seek

reconsideration or appeal from either order.5

On August 16, 2019, the trial court denied defendant's request to amend

her answer and granted plaintiff pendente lite support. The motion judge found,

5
We note the June 24, 2019 order is not appealable as it was consented to by
the parties' attorneys. See Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203,
207 (App. Div. 2009).

A-4592-19
7
"[t]here has been no credible, reliable, or verifiable proof to show that defendant

was subject to extreme cruelty, assault and/or battery, or intentional infliction

of emotional distress within the past year." Citing to Rule 5:4-2(e), and noting

defendant's proposed counterclaim referred to acts that occurred between 1999

and 2014, the judge concluded it was "not proper for defendant to supplement

[her pleadings] as the alleged acts . . . took place well before the filing of

plaintiff's original complaint."

Additionally, the judge awarded plaintiff pendente lite support in the sum

of $2500 per month, subject to defendant's ability to seek a credit for her support

payments at trial. The judge found defendant earned "approximately $12,500

per month as a critical care nurse," whereas plaintiff was "75 and not working

as a result of a stroke he suffered in 2003," and living on $638 per month "via

Canadian benefits." The judge also concluded that, contrary to defendant's

argument that plaintiff was "being supported by his girlfriend, [E.S.], . . . there

is no proof of same."

On September 13, 2019, the same motion judge considered E.S.'s motion

to quash defendant's subpoena. Although E.S. consented to being deposed by

defendant's counsel, she objected to the scope of the financial documents

defendant subpoenaed. At oral argument, E.S. stated she believed she was

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8
"being targeted" by defendant for providing refuge to plaintiff even though she

was not a "girlfriend, lover, or paramour to [plaintiff]." E.S. confirmed plaintiff

was staying at her home "as of April 5, 2019 because he was thrown out of his

house . . . . He had nowhere else to go." She characterized defendant's attempts

to secure her financial records as a "fishing expedition," and stated she "share[d]

no bank accounts or ownership of property with anyone else." E.S. also advised

the court she wanted to retire the following year and was purchasing a house in

Delaware which she would "share with no one." She added:

I repeat that. I will share this house with no one . . . . I
have no intention of sharing my retirement home with
[plaintiff] or anyone else. I am a hermit . . . and a loner.
I would rather work for the rest of my life . . . than share
a house with [plaintiff] or anyone else.

When describing plaintiff's mental health, E.S. stated he had declined over

the last year "in terms of memory loss and cognitive impairment." She attested

that when plaintiff first was restrained from the marital home, he went to a hotel,

but "did not know he was in a hotel or what hotel he was in. He did not know

what town he was in . . . . After much effort, I found him . . . . He begged me

to take him in, and with grave misgivings, I acquiesced."

The judge partially granted E.S.'s motion. He permitted defendant to

depose E.S., but confined her access to E.S.'s bank statements to those dating

A-4592-19
9
back to April 2019 for "all bank accounts held solely by [E.S.], redacted to

disclose only (A) payments for the benefit of the plaintiff or (B) money received

from the plaintiff[;] and . . . bank statements since April 2019 for any bank

accounts held jointly by [E.S.] and plaintiff." Despite being permitted this

discovery, defendant elected not to depose E.S. or issue a new subpoena for the

documents allowed under the September 13 order. Instead, defendant moved

for leave to appeal the order; we denied her application.

On October 25, 2019, the trial court granted plaintiff's motion to enforce

the pendente lite support order. In its accompanying written opinion, the court

noted defendant was

granted the opportunity to depose [E.S.], but she
continues to fail to prove that plaintiff and [E.S.] are or
were cohabiting romantically. Indeed, as of October
15, 2019, plaintiff moved to Canada to reside with his
daughter. If defendant proves that plaintiff and [E.S.]
were cohabiting, she may be entitled to a future credit.
Presently, she has not provided any compelling reason
as to why the pendente lite order should not stand, and
she is obligated to make payments pursuant to that
order.

The motion judge also found defendant had "done herself a serious

disservice by failing to comply with the August 16, 2019 order . . . . She

provides ample grounds for an objective finding that she has acted in bad faith."

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Accordingly, the judge granted plaintiff's request for counsel fees and costs in

the sum of $2,803.75.

A newly assigned judge conducted the divorce trial over a period of four

days in November 2019 and January 2020. At the start of the trial, plaintiff's

counsel called defendant as her first witness. Defendant provided testimony

regarding her income and expenses, and confirmed the parties "live[d] separate

lives" as of 2005. She explained the parties "made a deal that [plaintiff] "was

gonna live . . . in the basement" and would be covered under her health insurance

plan. Defendant testified she previously "tried to divorce [plaintiff] twice" but

he threatened to kill her and her children. Further, she described other acts of

domestic violence plaintiff purportedly committed.

On the last day of trial, defendant's adult children and son-in-law also

provided testimony about how plaintiff emotionally and physically abused

defendant. Defendant's son testified that despite plaintiff's behavior, defendant

would tell her children to "try to be nice to [plaintiff], try to work with him."

Defendant's son stated defendant "always cared for [plaintiff] and she always

defended him." Defendant's daughter testified that "as the years went by, [the

parties' relationship] became . . . very like volatile . . . But you know, it's just

kind of been on and off, and [my mother] always just . . . loved him and tried to

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11
make it work." Defendant's son-in-law testified that he "actually did not witness

any physical violence [between the parties] . . . . [but] saw threats or heard

threats" plaintiff made to defendant. In contrast, plaintiff's former wife testified

plaintiff never struck her, and that although she and plaintiff would push each

other during marital arguments, she never was "concerned for [her] safety

around him."

E.S. also testified at the divorce hearing. She confirmed she initially

agreed to serve as plaintiff's power of attorney at his attorney's request but

transferred this responsibility to plaintiff's daughter when plaintiff relocated to

Canada. E.S. stated she provided plaintiff with "sanctuary" because she "was

the last remaining friend that he could rely on" and she originally thought

plaintiff would be staying with her "for a month or two." She testified there was

"no romance" between her and plaintiff, and that prior to April 2019, she never

paid for any of plaintiff's bills, but regularly saw him or spoke to him by phone.

Asked on cross-examination if she would be surprised to learn there were "over

500 phone calls" between her and plaintiff over the past three years, E.S. stated,

"It would not surprise me." Nevertheless, E.S. affirmed, "I will not have

[plaintiff] living with me ever again."

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 At the end of the second day of the trial in November 2019, the GAL

requested that plaintiff be physically excused from appearing at trial, due to his

health issues and recent relocation to Canada. The trial court granted this

request, on the condition that plaintiff would "be available at least by phone or

Skype for rebuttal testimony if he's called." No objection was lodged by

defendant's attorney to this arrangement, nor did he state an intention at that

time to call plaintiff as his witness.

On the third day of trial, the GAL testified about plaintiff's cognitive

limitations, as well as his financial needs. She estimated plaintiff would "need

roughly $5000 a month [in support], especially when he's in the nursing home,"

to cover not only his shelter expenses, but "expenses incurred for day-to-day

food, . . . [and] a taxi or transport to and from medical appointments" because

plaintiff was unable to drive. She stated that in calculating the amount of

alimony she thought defendant should pay, she relied, in part, on defendant's

2017 W-2 because the GAL did not receive a 2018 or 2019 W-2 from defendant.

During cross-examination, the GAL stated that although she did not assist

plaintiff in preparing his CIS's, E.S. and plaintiff discussed a CIS with her. Also,

the GAL understood E.S. "did not help plaintiff prepare this physical document"

but E.S. "knew the numbers, and that was relayed." The GAL also stated

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13
plaintiff was living with his daughter in Canada while "awaiting . . . enrollment

in a nursing facility," his daughter was his power of attorney and "she's the one

that has knowledge of what his projected expenses might be and what the

expenses might be for him in Canada." Further, the GAL testified plaintiff's

daughter was "financing his care" because plaintiff had not received court-

ordered support, other than one payment for $2000 in November 2019. The

GAL calculated defendant's arrears totaled roughly $14,400. She also stated she

was unaware of any assets plaintiff had "independent of [defendant]."

Next, plaintiff's daughter testified by phone. She stated plaintiff came to

live with her in October 2019 because he no longer was able to live in the United

States without assistance. When describing her father's mental health issues,

she stated "[h]e needs to be watched 24/7." Regarding what she described as

her father's state of "dementia," she recalled that the preceding Christmas,

plaintiff thought his family was a gang and "were taking him to a hotel to lock

him up and beat him up." She also testified plaintiff would frequently get

paranoid and mistakenly call her "Mom." She stated she investigated options

for her father's care, including adult day care and a "memory care" facility, but

there was "at least probably a two-year waiting list." Plaintiff's daughter

testified her father sometimes attended an adult daycare facility, but she also

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14
was "looking after him physically" and had "missed quite a bit of work . . .

because his symptoms are getting worse." She stated she was paying for her

father's expenses because he "has about $1900 Canadian to his name, which I

believe is about . . . $1600 American. That's all he has." She stated that other

than her father's income from his Canadian pension, she was not "aware of any

other income" he received and she was not "aware of any other assets that he

has," "other than the marital home and assets that are at issue" in the divorce.

On cross-examination, she testified she helped her father prepare his CIS.

At the conclusion of the third day of trial on January 13, 2020, defendant's

attorney notified the judge for the first time that he "wanted to call the plaintiff

as [his] first witness." Defendant's attorney acknowledged the trial court had

"given [plaintiff] a [GAL]," and he "did not object" to that appointment, but

explained that nevertheless, "it's our position that all of this dementia is an act.

We will show a video tomorrow of the way [plaintiff] was acting just in February

2019, just two months before all this dementia apparently came about." Because

the judge had excused plaintiff from physically attending trial when the parties

appeared in court in November 2019, the judge asked counsel if he served a

A-4592-19
15
notice in lieu of subpoena to compel plaintiff's appearance. 6 Defendant's

attorney conceded he had not, but he "was under the impression that [plaintiff]

would be here." Counsel then argued his "client's due process rights . . . [were]

being violated, not intentionally, but with the confusion with these Rules."

Additionally, he contended that although plaintiff completed interrogatories and

CIS's with the assistance of counsel, defendant was deprived of "the right to

adjudicate her divorce because she cannot question the person who provided the

information to the court."

Plaintiff's counsel objected to defendant's request to compel plaintiff 's

physical appearance at trial, representing that she "received no communication

whatsoever from [defendant's counsel,]" regarding this request, even though "it

6
Rule 1:9-1 provides:

The testimony of a party who could be subpoenaed may
be compelled by a notice in lieu of subpoena served
upon the party's attorney demanding that the attorney
produce the client at trial . . . . The notice shall be served
in accordance with [Rule] 1:5-2 at least [five] days
before trial.

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16
was made clear" when the parties were last in court that plaintiff would not need

to be physically present "the next time."

The judge denied defendant's application without prejudice,

acknowledging he recently excused plaintiff from physically attending the trial,

but that "doesn't change the need to serve a notice in lieu of subpoena if you're

going to call your adversary. That hasn't been done." The judge also stated

arrangements should have been made "long before today . . . for [plaintiff] to

testify . . . and it would have afforded [plaintiff's counsel] an opportunity to

prepare this individual for whom a guardian was appointed as to his testimony."

He added:

Obviously the . . . scope has expanded somewhat, but
the reason why [the trial court] ordered what [it]
ordered, the appointment of a [GAL], is based upon the
medical condition of the plaintiff and the need to have
someone to stand in his shoes. That has not changed.
That was the purpose for it.

What troubles me more than anything are two things.
Number one, a notice in lieu of subpoena was never
provided that would have allowed ample opportunity to
object to that, to deal with that before this case even
started. The fact that [plaintiff] was excused to
physically be here today doesn't change the need to
serve a notice in lieu of subpoena if you're going to call
your adversary. That hasn't been done . . . . but certainly
important is these are arrangements that have to be
made long before today if we were going to do some
Skyping arrangement for him to testify of any kind.

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 Certainly, that should have been known to all, arranged
for all, and it would have afforded [plaintiff's counsel]
an opportunity to prepare this individual for whom a
[GAL] was appointed as to his testimony. So
procedurally I have a problem with it.

Substantively, I’ve heard those things from the [GAL]
that I need to hear to decide the issues in this case.
However, based upon [defendant's attorney's]
representation, I’m going to deny his request for the
plaintiff to appear to testify at this time without
prejudice. I can revisit that in the event that there’s
some other evidence produced that might suggest that
the plaintiff is faking his injury, although there is no
medical support for that. There’s nothing in the record.
I’m only leaving that open as a possibility if I could be
convinced, and it will require some convincing that he
should be required to testify. That is not going to
happen today.

So, for those reasons I'm going to deny your request
without prejudice . . . .

When the trial concluded, plaintiff's answers to interrogatories, as well as

his CIS's were admitted into evidence without objection.

On March 12, 2020, following written summations from counsel, the trial

court issued a JOD. In his accompanying written opinion, the judge found

"[p]laintiff did not testify at trial due to his medical conditions and disability"

whereas "[d]efendant testified and was oftentimes not credible. She was

evasive, unable to recall specifics, and condescending in response to

questioning." The judge gave examples of "defendant's behavior and testimony

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which lacked credibility," citing to her testimony about keeping no records for

$17,500 worth of roof repairs she claimed to have had done, her different

birthdates on various government-issued documents, and the fact her January

2019 CIS "contain[ed] many discrepancies and wildly overstated costs."

The judge also outlined the statutory factors he considered under N.J.S.A.

2A:34-23 before awarding plaintiff open durational alimony in the sum of $2500

per month. The judge found this amount was appropriate, in part, based on:

defendant's income of $182,000 per year; plaintiff's limited income of $638 per

month from his Canadian government pension; the duration of the parties'

twenty-three year marriage; their "modest, middle class standard of living ";

plaintiff's lack of "reportable [earned] income for over fifteen years" ; and the

GAL's estimate of plaintiff's needs based on plaintiff's November 2019 CIS,

which include[d] . . . anticipated costs of nursing care for plaintiff. The judge

characterized the alimony as "deductible to [d]efendant and taxable to

[p]laintiff."

Additionally, the judge directed the parties to share equally in the equity

in their Florida property and the former marital residence, subject to plaintiff

receiving a "credit of $37,500 for one half of the $75,000 Home Equity Line of

Credit . . . unaccounted for at closing." The judge also ordered the parties to

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share equally in marital retirement assets and to pay their respective legal fees.

However, he directed the parties to each pay half of the GAL's fees totaling

$29,796.85 within thirty days. The court stated it "view[ed] with disfavor

defendant's noncompliance with the pendente lite obligation . . . and that was a

consideration in the court's decision that the parties shall split equally the cost

of services rendered by [the GAL]."

Shortly thereafter, defendant moved to vacate the JOD pursuant to Rule

4:50-17; alternatively, she sought to be relieved from paying alimony and

contributing toward the GAL's fees. In conjunction with her application, she

also argued that the judge's decision regarding the deductible and taxable nature

of alimony was incorrect. Additionally, she contended that after the trial

7
Rule 4:50-1(a) to (c) provides, in part:

On motion, with briefs, and upon such terms as are just,
the court may relieve a party or the party's legal
representative from a final judgment or order for the
following reasons: (a) mistake, inadvertence, surprise,
or excusable neglect; (b) newly discovered evidence
which would probably alter the judgment or order and
which by due diligence could not have been discovered
in time to move for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party.

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concluded, she discovered a letter from the Royal Bank of Scotland, which was

addressed to plaintiff, and appeared to be a cover letter for a new debit card to

be sent to him. She argued this letter was proof plaintiff had not disclosed an

account he acquired during the marriage.

Plaintiff objected, through counsel, to vacating or modifying the JOD,

although he, too, sought clarification of the taxability and deductibility of the

alimony award. Plaintiff also moved to enforce the JOD, contending defendant

still had made only one payment of $2000 since the entry of the support order.

Regarding the 2018 letter from the Royal Bank of Scotland, plaintiff's counsel

argued that it was submitted with defendant's written summation, after trial and

over her objection, so it still should not be considered. Plaintiff's counsel

observed that because defendant claimed she found the letter in the marital

home, of which she had sole possession since April 2019, defendant had had

"ample time within which to present this document and obtain records from the

Royal Bank of Scotland." Plaintiff's attorney further argued that even if some

sum of money existed in an account with the Royal Bank of Scotland, it might

not be subject to equitable distribution and in any event, the letter would not

"alter the division of the marital property, including the retirement accounts and

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21
the marital home." The GAL filed a separate motion, seeking to enforce the

JOD based on the lack of payment toward her fees.

On July 16, 2020, the judge entered the AJOD, denying defendant's

request to vacate the JOD, but partially granted her reconsideration motion to

correct his "scrivener's error" as to the taxability of alimony to be paid by

defendant.8 The judge made clear, however, that defendant's "spousal support

obligation and the amount of that obligation remain unchanged." In denying the

balance of the relief requested by defendant, the judge noted the "preferred

course for one unsatisfied with a judicial determination is to seek an appeal ."

He added that a reconsideration motion is "not to serve as a vehicle to introduce

new evidence . . . to cure an inadequacy in the . . . record." On the other hand,

the judge granted plaintiff's and the GAL's motions to enforce the JOD, subject

to the amendment regarding the taxability and deductibility of alimony.

On appeal, defendant raises multiple arguments for our consideration, as

follows:

8
Alimony is not deductible for the payor spouse, nor included in the gross
income for the payee on federal income taxes for final judgments of divorce
executed after December 31, 2018 or "executed on or before such date and
modified after such date if the modification expressly provides that the
amendments made by this section apply to such modification." Tax Cuts and
Jobs Act of 2017, Pub. L. No. 115-97, § 11051(b), 131 Stat. 2054, 2089-90
(2017).
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 POINT 1

[THE] COURT ERRED IN SIGNIFICANTLY
LIMITING DISCOVERY AND QUESTIONS IN THE
DEPOSITION OF THE INDIVIDUAL THAT
[PLAINTIFF] WAS COHABITATIN[G] WITH.

POINT II

[THE] COURT ERRED IN AWARDING ALIMONY
EVEN THOUGH [PLAINTIFF] WAS
COHABITATING.

POINT III

[THE] COURT ERRED IN NOT ALLOWING
[DEFENDANT] TO CALL [PLAINTIFF] AS A
WITNESS IN HIS OWN DIVORCE TRIAL.

POINT IV

[THE] COURT ERRED IN NOT REQUIRING
[PLAINTIFF] TO ATTEND HIS OWN DIVORCE
TRIAL.

POINT V

[THE] COURT ERRED IN NOT ABIDING BY RULE
4:26-2 IN BOTH THE APPOINTMENT AND THE
USE OF THE GAL.

POINT VI

[THE] COURT ERRED IN ALLOWING THE GAL
TO TAKE THE PLACE OF THE [PLAINTIFF].

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 POINT VII

[THE] COURT ERRED IN ORDERING
DEFENDA[]NT TO PAY HALF OF THE GAL FEES
[AND $2500] OF [PLAINTIFF'S] ATTORNEY FEES
FOR MOTION FOR RECONSIDERATION.

POINT VIII

[THE] COURT ERRED IN DISALLOWING
TESTIMONY ABOUT DOMESTIC VIOLENCE
ABUSE ON THE BASIS THAT IT HA[D] NO
RELEVANCE TO ALIMONY OR EQUITABLE
DISTRIBUTION.

POINT IX

[THE] COURT ERRED IN NOT VACATING [THE
JOD] PURSUANT TO RULE 4:50-1 AFTER IT WAS
DISCOVERED THAT PLAINTIFF FAILED TO
DISCLOSE HIS OVERSEAS BANK ACCOUNT AND
REAL ESTATE.

POINT X

[THE] COURT ERRED IN NOT ALLOWING
DEFENDANT TO PLAY A VIDEO OF [PLAINTIFF]
FROM FEBRUARY 2019 WHICH WOULD HAVE
DEMONSTRATED THAT [PLAINTIFF] DID NOT
SUFFER FROM ANY COGNITIVE DEFICIENCIES.

These arguments are unavailing. We add the following comments.

Our review of a trial judge's fact-finding function is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal

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when supported by adequate, substantial, credible evidence." Id. at 411-12

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

"Because of the family courts' special jurisdiction and expertise in family

matters, appellate courts should accord deference to family court factfinding."

Id. at 413. "Deference is especially appropriate 'when the evidence is largely

testimonial and involves questions of credibility.'" Id. at 412 (quoting In re

Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is so because the

judge has the opportunity to see and hear the witnesses as they testify, thereby

developing a "'feel of the case' that can never be realized by a review of the cold

record." N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396 (2009)

(quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104 (2008)). A judge's purely legal

decisions, however, are subject to our plenary review. Crespo v. Crespo, 395

N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Governed by these principles,

we discern no reason to disturb the challenged judgments, orders or evidentiary

rulings.

Regarding Points I, II, and VII, defendant argues the trial court improperly

awarded plaintiff alimony and equitable distribution, despite that plaintiff

cohabited with E.S. and engaged in "egregious conduct" during the marriage.

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She also contends the trial court erred in limiting her ability to establish

plaintiff's cohabitation by allowing E.S. to "self-edit" her bank records. We

disagree.

"[T]he Legislature has defined cohabitation as 'a mutually supportive,

intimate personal relationship' in which the couple 'has undertaken duties and

privileges that are commonly associated with marriage or civil union.' N.J.S.A.

2A:34-23(n)." Temple v. Temple, ___ N.J. Super. ___ (2021) (slip op. at page

4). A court is to consider several factors in determining whether a couple has

cohabitated, including:

(1) Intertwined finances such as joint bank accounts
and other joint holdings or liabilities;

(2) Sharing or joint responsibility for living expenses;

(3) Recognition of the relationship in the couple's social
and family circles;

(4) Living together, the frequency of contact, the
duration of the relationship, and other indicia of a
mutually supportive intimate personal relationship;

(5) Sharing household chores;

(6) Whether the recipient of alimony has received an
enforceable promise of support from another person
within the meaning of [N.J.S.A. 25:1-5].

[Id. at pages 4-5.]

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 The supporting spouse bears the burden of proving "cohabitation to the

satisfaction of the court . . . ." Konzelman v. Konzelman, 158 N.J. 185, 202

(1999). Once the supporting spouse makes a showing, the burden shifts to the

dependent spouse "to show that there is no actual economic benefit to the spouse

or the cohabitant." Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div.

1998).

Here, the record reflects the motion judge partially granted defendant's

request to pursue discovery regarding her cohabitation claims, reasoning:

there is an allegation that [E.S.] is cohabitating with
plaintiff and supporting him financially. Since plaintiff
is seeking support from defendant, the court finds that
a deposition of [E.S.] may provide information and/or
evidence relevant to this present case. Though the court
acknowledges that defendant's request involves
relevant information, the court believes the extent of
information presently sought is excessive and unduly
burdensome on [E.S.]. As such, [E.S.'s] motion to
quash] is granted as modified.

Thereafter, defendant opted not to depose E.S. or issue a new subpoena to

comply with the trial court's discovery order. Although defendant points to the

uncontroverted fact that E.S. provided shelter for plaintiff for a limited five-

month period when he was restrained from the marital home and receiving no

pendente lite support from defendant, defendant fails to establish she presented

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evidence at trial tethered to the statutory factors outlined under N.J.S.A. 2A:34-

23(n). Because defendant did not demonstrate plaintiff cohabited with E.S., as

contemplated by the Legislature, and she neglected to utilize the discovery tools

approved by the court to support her claims of cohabitation, the trial judge was

not compelled to accept her bare allegations of cohabitation.

Regarding defendant's contention that she was unfairly constrained during

the discovery process, we observe that ordinarily, "we decline to interfere with

discretionary rulings involving discovery unless it appears that an injustice has

been done." Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988).

Generally, parties may discover non-privileged information "which is relevant

to the subject matter involved in the pending action." R. 4:10-2(a). However,

"the scope of discovery is not infinite." K.S. v. ABC Pro. Corp., 330 N.J. Super.

288, 291 (App. Div. 2000). "Discovery is intended to lead to facts supporting

or opposing an asserted legal theory; it is not designed to lead to formulation of

a legal theory." Camden Cnty. Energy Recovery Assocs. v. N.J. Dept. of Env'tl

Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd o.b., 170 N.J. 246 (2001).

Also, Rule 4:10-3 authorizes a court to make "any order that justice requires to

protect a party or person from annoyance, embarrassment, oppression, or undue

burden or expense." Mindful of these principles, we perceive no basis to disturb

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the September 13, 2019 order, as we are satisfied it was carefully tailored to

protect E.S.'s privacy interests while recognizing defendant's right to pursue

financial discovery against a non-party relative to her cohabitation claims.

We also find no merit to defendant's argument in Point VIII that the trial

court erred in "disallowing testimony about domestic violence abuse on the basis

that it has no relevance or alimony or equitable distribution." In fact, any

contention by defendant that she was barred from offering testimony about

domestic violence is belied by the record. As we have discussed, each party

presented anecdotal evidence regarding defendant's allegations of domestic

violence. Further, defendant cites to nothing in the record to demonstrate the

trial court ignored this evidence.

We evaluate Family Part decisions concerning alimony and equitable

distribution and alimony under an abuse of discretion standard. See Innes v.

Innes, 117 N.J. 496, 504 (1990), and Borodinsky v. Borodinsky, 162 N.J. Super.

437, 443-44 (App. Div. 1978). In doing so, we recognize alimony and equitable

distribution are interrelated. See N.J.S.A. 2A:34-23(b)(10) (requiring the court

to consider the equitable distribution awarded and any direct or indirect payouts

on equitable distribution, when determining the type and amount

of alimony); Conforti v. Guliadis, 128 N.J. 318, 324 (1992) (noting the intimate

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29
relationship of equitable distribution and support); Claffey v. Claffey, 360 N.J.

Super. 240, 263 (App. Div. 2003) (noting the "unquestionable interrelationship

between alimony and equitable distribution"). However, a trial court is to

consider two different sets of statutory factors when determining the extent to

which alimony or equitable distribution is appropriate. See N.J.S.A. 2A:34-

23(b) and N.J.S.A. 2A:34-23.1.

"New Jersey cases have long expressed the view that alimony is neither

a punishment for the payor nor a reward for the payee." Mani v. Mani, 183 N.J.

70, 80 (2005). Alimony is designed to allow a spouse who has been supported

during the marriage to, as best as possible, maintain the marital standard of

living. See Gnall v. Gnall, 222 N.J. 414, 429 (2015).

Generally, "marital fault is irrelevant" in determining alimony. Mani, 183

N.J. at 72 (2005). Where marital fault has no residual economic consequences,

it may not be considered in an alimony award. Id. at 91. Nonetheless, "[i]n the

extremely narrow class of cases in which" egregious conduct occurs, "it may be

considered by the court, not in calculating an alimony award, but in the initial

determination of whether alimony should be allowed at all." Clark v. Clark, 429

N.J. Super. 61, 74 (App. Div. 2012). In cases where the misconduct rises to the

level of egregious fault where "society would not abide continuing the economic

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bonds between the parties," the misconduct may preclude

any alimony award. Mani, 183 N.J. at 92. Egregious conduct exists, for

example when "'a dependent spouse who has attempted to murder the supporting

spouse' [or] '[d]eliberately infect[s] a spouse with a loathsome disease[.]'"

Clark, 429 N.J. Super. at 75 (quoting Mani, 183 N.J. at 92).

When considering an award of equitable distribution, a trial judge should

apply the statutory factors and "distribute the marital assets consistent with the

unique needs of the parties." DeVane v. DeVane, 280 N.J. Super. 488, 493

(App. Div. 1995). Property need not be equally allocated if the "sole ownership

or allocation of a major share to one of [the parties] is warranted by all the

financial and personal considerations underlying the equitable distribution

plan." Daeschler v. Daeschler, 214 N.J. Super. 545, 553 (App. Div. 1986).

Applying these principles to defendant's arguments regarding the trial

court's alimony and equitable distribution awards, we note defendant initially

pursued no Tevis claim against plaintiff when she filed her answer to the

complaint for divorce. She also agreed to the parties' mutual dismissal of their

TROs before they were adjudicated. Moreover, she produced no proofs in the

form of photos, or medical, psychological or psychiatric records to document

plaintiff's purported egregious conduct and she offered no expert opinion to

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establish a causal connection between any abuse she suffered during the

marriage and injuries she sustained. Under these circumstances, coupled with

the judge's findings that plaintiff "did not testify . . . due to his medical

conditions and disability," but defendant's testimony "oftentimes was not

credible," we are not convinced the trial court erred in awarding plaintiff

alimony and a share of the parties' marital assets. Moreover, we find no basis

to disturb the judge's modest award of $2500 per month in alimony, given his

findings that defendant grossed $182,000 in income, "[p]laintiff has no ability

to support himself and has no income other than a $638 monthly Canadian

government pension," and defendant represented in her November 2019 CIS that

the marital lifestyle expenses exceeded $14,000 each month.

In Points III, IV, V, VI and X, defendant takes issue with how the trial

court addressed plaintiff's reported cognitive issues and how the judge permitted

the GAL to testify about plaintiff's physical and financial needs. She contends

the trial court erred by: precluding her from calling plaintiff as a witness; not

requiring plaintiff "to attend his own divorce trial"; appointing and using the

GAL contrary to Rule 4:26-2; allowing the GAL to "take the place of" plaintiff;

and preventing defendant from playing a video at trial to demonstrate plaintiff

did not suffer from cognitive deficiencies. Again, we are not convinced.

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 First, we note the GAL was appointed with the consent of counsel in June

2019, and no objection was lodged to the appointment when the GAL was

specifically named roughly two months later. Also, in November 2019,

defendant did not object when the judge excused plaintiff from physically

appearing for upcoming trial days, subject to making himself "available at least

by phone or Skype for rebuttal testimony if he's called." It was not until January

13, 2020, as the third trial day concluded, that her attorney advised the court he

wished to call the plaintiff as his first witness. At that point, defendant's attorney

represented he made the request because he wanted to "ask [plaintiff] essentially

everything that [he had] asked all the other parties as it relates to [plaintiff's]

. . . marriage." Nevertheless, defendant's counsel neglected to timely serve a

notice in lieu of subpoena upon plaintiff's counsel to compel plaintiff's

appearance, and he failed to communicate to his adversary during the two-month

period the trial was on hiatus that he wanted plaintiff to travel back from Canada

to testify. Thus, we are not persuaded the judge erred in refusing to order

plaintiff's return to New Jersey to take the witness stand.

We also are not troubled by the role the GAL played in the divorce

proceedings, given how the GAL's appointment evolved, the fact that the GAL

was appointed to "represent the interests of the plaintiff," and the testimony

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provided by the GAL, E.S., and plaintiff's daughter, all of whom described

plaintiff's impaired mental health and inability to support himself.

Rule 4:26-2(b)(4) provides that "[t]he court may appoint a [GAL] for . . .

an alleged [mentally] incapacitated person on its own motion." Julius v. Julius,

320 N.J. Super. 297, 309 (App. Div. 1999) (emphasis supplied). "[T]he function

of a [GAL] is only to protect the interests of the ward in respect of the litigation."

Ibid. "[I]n the absence of a contravening standard in Rule 4:26-2(b), the trial

court may appoint a GAL for an allegedly mentally incapable adult for 'good

cause.'" S.T. v. 1515 Broad Street, LLC, 455 N.J. Super. 538, 554 (App. Div.

2018). "The role of a[GAL] is to act as an independent investigator and inform

the court on the subject of the client's mental capacity." S.T. v. 1515 Broad

Street, LLC, 241 N.J. 257, 278 (2020). A GAL serves "as 'the eyes of the court'

to further the client's 'best interests.'" Ibid. (quoting In re Mason, 305 N.J. Super.

120, 127 (Ch. Div. 1997)).

Here, after being appointed with consent of counsel, the GAL offered

testimony regarding plaintiff's mental health issues, as well as his physical and

financial needs. She acknowledged her testimony was based, in part, on

information received from plaintiff's daughter and E.S. Defendant had the

opportunity to, and did, cross-examine the GAL at length. Therefore, we cannot

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conclude the GAL "overstepped" her role in representing and protecting plaintiff's

interests.

Additionally, we are not convinced the trial court erred in precluding

defendant from playing a February 2019 video on the last day of trial to prove

plaintiff "did not suffer from any cognitive deficiencies." The record reflects

defendant not only failed to produce the video to plaintiff in the normal course

of discovery, but her attorney waited until the night before the last trial day to

produce it to opposing counsel. Plaintiff's counsel objected to the late

submission, arguing "it certainly was never provided in discovery within the

context of the divorce case," and that she was not given the "opportunity to

prepare for [its contents] during [her] case in chief."

The judge declined to admit the video, finding "it's violative of our Court

Rule in that it was not provided in discovery," and "plaintiff should have [had]

the opportunity to know about the existence of the video and the playing of it

for the purposes of being able to respond to it or present his case." Additionally,

the judge found the "video would be nothing more than a needless presentation

of cumulative evidence . . . [a]nd . . . would serve to confuse the issues." He

further stated that "[u]nless the defendant is going to provide medical testimony

as to [plaintiff's] mental capacity or condition, I'm not going to make that

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determination on my own . . . . And for that reason, the video will not be

allowed."

We are not persuaded the judge's decision to preclude this evidence was

error, particularly because the parties were given ample time to seek and

exchange discovery before the trial commenced, and because issues related to

plaintiff's cognitive functioning were well known to counsel for several months

before the trial began. Further, defendant did not seek the appointment of a

mental health expert, see Rule 5:3-3(a), nor did she retain her own expert to

contest claims advanced by plaintiff's counsel and the GAL that plaintiff was

suffering from cognitive decline and would need institutional care, see Rule 5:3-

3(h) (allowing for the use of private experts, such as medical and mental health

experts).

We need not discuss at length defendant's arguments under Point VII.

Suffice it to say, defendant mistakenly argues counsel fees in the sum of $2500

were awarded to plaintiff following defendant's reconsideration motion in 2020.

In fact, the trial judge confirmed in the July 16, 2020 AJOD that each party was

responsible for his or her own counsel fees.

We also are satisfied defendant's contention that the trial court erred in

compelling her to pay half of the GAL's fees lacks merit. Such an award is

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expressly authorized by Rule 4:26-2(c). Indeed, Rule 4:26-2(c) permits an

appointed GAL to apply for an allowance of fees on notice to all the parties .

Further, due to the significant disparities in the parties' incomes, the integral role

the GAL played in representing plaintiff's interests, and the court's finding that

defendant's "noncompliance with the pendente lite obligation in this matter . . .

was a consideration in the court's decision that the parties shall split equally the

costs of services rendered by [the GAL]," we are not convinced the trial court

abused its discretion by compelling the parties to share responsibility for the

GAL's fees. To the extent the GAL urges us to exercise original jurisdiction to

compel defendant to satisfy her share of the GAL's fees, we decline this

invitation, as we are confident the trial court has a superior ability to enforce its

own orders. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div.

2009) (holding that original jurisdiction should be exercised "with great

frugality and in none but a clear case free of doubt").

Finally, defendant contends in Point IX that the trial court erred in denying

her motion to vacate the JOD under Rule 4:50-1, because after the trial

concluded, she discovered a May 2018 letter from the Royal Bank of Scotland,

addressed to plaintiff, purportedly referring to an account he had not disclosed

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and advising plaintiff the bank was sending him "a new debit card." Again, we

are not persuaded.

Relief under this Rule is granted sparingly. Pressler & Verniero, Current

N.J. Court Rules, cmt. 1 on R. 4:50-1 (2021); Hous. Auth. of Town

of Morristown v. Little, 135 N.J. 274, 283-84 (1994). Whether to vacate a

judgment on one of the six specified grounds is a decision left to the sound

discretion of the trial court, guided by principles of equity. Little, 135 N.J. at

283; Hodgson v. Applegate, 31 N.J. 29, 37 (1959). We will not disturb that

court's determination absent "a clear abuse of discretion." Little, 135 N.J. at

283; Hodgson, 31 N.J. at 37.

Defendant argues she was entitled to have the JOD vacated on the basis

of mistake or fraud. But a party asking for relief from a judgment on the basis

of mistake must demonstrate that party could not have protected him or herself

from the mistake during the litigation. DEG, LLC, v. Twp. of Fairfield, 198

N.J. 242, 263 (2009). Also, a party seeking to be relieved from a judgment based

on fraud must demonstrate, by clear and convincing evidence, testimony or

conduct that is willfully false, material to the issue, and that the falsity could not

have been discovered by reasonable diligence. See Shammas v. Shammas, 9

N.J. 321, 330 (1952); Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366 (App. Div.

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1964). Here, the divorce proceedings were fully contested with extensive

pretrial motion practice and four days of trial, during which both parties were

represented by counsel. Also, both parties were given the opportunity to engage

in discovery. Nevertheless, defendant does not explain why she did not produce

the 2018 letter, which she found in her home, until after the trial concluded.

Since it was defendant's burden to show why the JOD should be vacated and she

did not meet that burden, we are not satisfied the trial court erred in denying her

relief under Rule 4:50-1.

To the extent we have not addressed any of defendant's remaining

arguments, they are without sufficient merit to warrant discussion. R. 2.11-

3(e)(1)(E).

Affirmed.

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