CHARLES SMITH VS. DANIELLE SMITH (FM-14-0192-16, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4226-18

CHARLES SMITH,

Plaintiff-Appellant/
Cross-Respondent,

v.

DANIELLE SMITH,

Defendant-Respondent/
Cross-Appellant.
_________________________

Submitted January 4, 2021 – Decided November 29, 2021

Before Judges Hoffman, Suter, and Smith.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0192-16.

Gruber, Colabella, Liuzza & Thompson, attorneys for
appellant/cross-respondent (Chris H. Colabella and
Natalie L. Thompson, on the briefs).

Celli, Schlossberg, De Meo & Giusti, PC, attorneys for
respondent/cross-appellant (Vincent P. Celli, of
counsel and on the briefs).
 The opinion of the court was delivered by

SUTER, J.A.D.

Plaintiff Charles Smith appeals the May 9, 2019, Second Amended Final

Judgment of Divorce (SAFJOD) and May 24, 2019, Clarifying Order. He claims

the trial court erred: (1) by designating defendant as the parent of primary

residence (PPR) in calculating child support because they equally share

parenting time; (2) in determining the parties' incomes for calculating alimony,

college expenses for the oldest child and paying the children's unreimbursed

medical expenses; (3) by eliminating a three-year credit toward his alimony

obligation for pendente lite payments previously made; (4) in calculating

support arrears for defendant and requiring a lump sum payment; (5) by

requiring plaintiff to maintain $600,000 in life insurance to secure his alimony

obligation; (6) in determining equitable distribution regarding the Sussex

Turnpike property; and (7) by eliminating any investment credit for his

premarital funds in his retirement account.

Defendant Danielle Smith cross-appeals the SAFJOD. She argues the trial

court abused its discretion: (1) by not awarding child support for the oldest child

who is in college; (2) in the manner it determined equitable distribution on the

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2
Sussex Turnpike property and one of plaintiff's businesses; and (3) by denying

her request for counsel fees.

For reasons that follow, we affirm in part, and reverse and remand in part

for further proceedings consistent with this opinion.

I.

The parties were married on September 19, 1997, and have three children

born in 2000, 2002 and 2005, respectively. Plaintiff filed for divorce on August

13, 2015. Defendant filed an answer and counterclaim for divorce. They agreed

to joint legal and residential custody of the children in a Custody and Parenting

Time Agreement (Parenting Agreement). Parenting time was equally divided,

however, the oldest child resided with defendant from September 2015 to April

2018.

A pendente lite support order was entered on November 3, 2017, that

required plaintiff to pay defendant $500 per month in non-taxable support. He

was ordered to continue paying all Schedule A and B expenses, child support

"in the same manner that he has been paying," "all health care, unreimbursed

medical expenses, all extracurricular activities, clothing, . . . for the parties'

children," and insurance expenses.

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3
 The divorce case was tried over a period of ten days in April through July

2018. The parties stipulated to the appraised values of the marital residence and

to plaintiff's residence on Sussex Turnpike, agreeing to value them at $520,000

and $350,000, respectively. The trial court entered a Final Judgment of Divorce

(FJOD) on October 1, 2018, supported by a written statement of reasons.

Defendant filed a motion for a new trial and for enforcement. Plaintiff

filed a cross-motion in opposition and to clarify certain issues. On March 29,

2019, the trial court entered an Amended Final Judgment of Divorce (AFJOD)

supported by a written statement of reasons, which made significant changes in

the FJOD regarding alimony, alimony arrears and equitable distribution. The

court found "there was clearly and convincingly a miscarriage of justice on

certain issues previously decided by [the] [c]ourt."

Counsel for the parties and the court conducted a phone conference about

issues they raised regarding the AFJOD. On May 9, 2019, the trial court issued

the SAFJOD, which again made changes, and issued another written statement

of reasons.

Defendant requested a clarifying order claiming there was a discrepancy

between the SAFJOD and the court's statement of reasons. On May 24, 2019,

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the trial court issued an "Order Clarifying Equitable Distribution of . . . Sussex

Turnpike."

Plaintiff filed a notice of appeal, raising the following issues:

POINT I

THE TRIAL COURT ERRED IN MAKING
DEFENDANT THE PARENT OF PRIMARY
RESIDENCE FOR PURPOSES OF CALCULATING
CHILD SUPPORT AND NOT PROVIDING
PLAINTIFF WITH THE ADJUSTMENT PROVIDED
FOR IN WUNSCH V. DEFFLER.

POINT II

CONTRIBUTION FOR [S.S.'s] COLLEGE AND
UNREIMBURSED MEDICAL EXPENSES MUST BE
RECALCULATED IN THE EVENT THE COURT
CORRECTS ERRORS IN THE DETERMINATION
OF THE PARTIES' INCOMES AND THE ALIMONY
AMOUNT.

POINT III

THE TRIAL COURT DID NOT CORRECTLY
CALCULATE THE INCOMES OF THE PARTIES
WHEN DETERMINING ALIMONY.

POINT IV

THERE WAS NO MANIFEST INJUSTICE IN THE
FINAL JUDGMENT OF DIVORCE WHICH
WARRANTED THE DETERMINATION TO
ELIMINATE THE THREE-YEAR CREDIT
AWARDED TO PLAINTIFF FOR THE PENDENTE
LITE ALIMONY PAID.

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POINT V

THE DECISION TO AWARD DEFENDANT WITH A
LUMP SUM ARREARS PAYMENT DID NOT
CONSIDER THE SUBSTANTIAL PENDENTE LITE
SUPPORT PAID BY PLAINTIFF.

POINT VI

$600,000.00 OF LIFE INSURANCE WITH NO
DECREASE OVER THE TERM OF ALIMONY WAS
AN ABUSE OF DISCRETION.

POINT VII

THE FINAL DETERMINATION WITH REGARD TO
DEFENDANT'S INTEREST IN . . . SUSSEX
TURNPIKE CONTAINED MULTIPLE
MISCALULATIONS [sic], CONTRADICTIONS,
AND ERRORS AND MUST BE REMANDED FOR
THE CORRECT ANALYSIS AND CALULATIONS
[sic] TO BE MADE.

POINT VIII

THE TRIAL COURT ERRED IN FINDING THAT D-
25 WAS AN AGREED-UPON SPREADSHEET.

POINT IX

THE DETERMINATION NOT TO AWARD
PLAINTIFF WITH GAINS ON HIS PREMARITAL
FUNDS IN THE CHARLES SCHWAB ACCOUNT
WAS AN ERROR.

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 POINT X

THE DETERMINATIONS IN THE FINAL
JUDGMENT OF DIVORCE RELATIVE TO
PROVIDING PLAINTIFF WITH: THE WUNSCH V.
DEFFLER ADJUSTMENT FOR PURPOSES OF
CALCULATING CHILD SUPPORT; A REDUCTION
IN INCOME OF $12,000 FOR COMMUTING
EXPENSES; THREE YEARS OF CREDIT ON HIS
ALIMONY OBLIGATION; THE PROPERTY AT . . .
SUSSEX TURNPIKE WITH A CREDIT OF
$62,858.93 TO DEFENDANT; AND INTEREST ON
THE PREMARITAL FUNDS DEPOSITED INTO THE
CHARLES SCHWAB ACCOUNT SHOULD NOT
HAVE BEEN DISTURBED.

Defendant filed a cross-notice of appeal, raising additional issues:

POINT I
THE TRIAL COURT'S DECISIONS TO NAME
RESPONDENT THE PARENT OF PRIMARY
RESIDENCE FOR PURPOSES OF CALCULATING
CHILD SUPPORT AND TO DENY APPELLANT'S
REQUEST FOR THE WUNSCH-DEFFLER
ADJUSTMENT WERE WITHIN THE DISCRETION
OF THE COURT.

POINT II
THE TRIAL COURT'S FAILURE TO ORDER THE
PARTIES TO SHARE CHILD SUPPORT AND
UNREIMBURSED MEDICAL EXPENSES FOR
[S.S.], CHILD OF THE MARRIAGE, WAS AN
ABUSE OF DISCRETION.

POINT III
THE TRIAL COURT DID NOT CORRECTLY
DETERMINE THE INCOMES OF THE PARTIES
FROM THE TESTIMONY AND DOCUMENTARY

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EVIDENCE FOR ALIMONY AND CHILD SUPPORT
PURPOSES.

POINT IV
APPELLANT IS NOT ENTITLED TO AN
ADJUSTMENT IN THE NATURE, AMOUNT OR
DURATION OF ALIMONY UNDER N.J.S. 2A:34-
23b(13), BECAUSE THE MAJORITY OF THE
SUPPORT PAYMENTS HE MADE WERE NOT
PENDENTE LITE SUPPORT AND BECAUSE HE
HAD NOT MADE THE PAYMENTS UNDER THE
SHORT-LIVED PENDENTE LITE ORDER.

POINT V
THE TRIAL COURT'S DECISION TO REQUIRE
APPELLANT TO MAINTAIN LIFE INSURANCE
COVERAGE SECURING HIS ALIMONY
OBLIGATION IN THE AMOUNT OF $600,000.00
WAS NOT AN ABUSE OF DISCRETION.

POINT VI
THE TRIAL COURT'S DECISIONS WITH RESPECT
TO EQUITABLE DISTRIBUTION OF . . . SUSSEX
TURNPIKE AND THE COMMACK JEWELRY
EXCHANGE DO NOT COMPORT WITH THE
TESTIMONY AND DOCUMENTARY EVIDENCE
ADDUCED AT TRIAL AND THUS CONSTITUTE
AN ABUSE OF DISCRETION.

POINT VII
THE TRIAL COURT'S DECISION DECLINING TO
AWARD APPELLANT WITH GAINS ON HIS
PREMARITAL ASSETS IN THE CHARLES
SCHWAB ACCOUNT WAS WITHIN THE
DISCRETION OF THE COURT, BECAUSE
APPELLANT DID NOT SUSTAIN HIS BURDEN OF
PROOF.

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 POINT VIII
THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT FOUND APPELLANT TO BE A GOOD
FAITH, CREDIBLE WITNESS AND DENIED
RESPONDENT'S REQUEST FOR COUNSEL FEES,
EXPERT FEES AND COSTS OF THE LITIGATION.

II.

We accord "great deference to discretionary decisions of Family Part

judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)

(citations omitted), in recognition of the "family courts' special jurisdiction and

expertise in family matters." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201

N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

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)). When the issue

presented turns on a legal conclusion derived from the Family Part's factfinding,

"we are not required to defer." N.J. Div. of Youth & Fam. Servs. v. A.R., 419

N.J. Super. 538, 542-43 (App. Div. 2011).

We relate the evidence as necessary to address each of the issues the

parties have raised on appeal.

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 A. Child Support

Plaintiff argues the trial court erred by designating defendant the PPR

because he and defendant equally share parenting time. Plaintiff argues the

court should not have removed the Wunsch-Deffler1 adjustment from the child

support calculation because of the equal nature of their parenting time.

In the FJOD, the trial court found "for all intents and purposes, the parties

have 50/50 responsibilities for their children" and that "the parental

responsibilities are the same for both parties." It ordered plaintiff and defendant

to continue to share joint legal custody of the three children and to follow their

Parenting Agreement. Plaintiff was ordered to pay $93 per week in child support

for the two younger children based on the Child Support Guidelines

(Guidelines), "adjusting for the Wunsch-Deffler computation." The oldest child

was scheduled to attend college. The trial court ordered plaintiff to pay sixty-

five percent of his college expenses and defendant to pay thirty-five percent

after the child applied for "scholarships, loans, grants, and all other financial

aid, where eligible." This was based on the parties' incomes. There was no

additional child support ordered for the child in college.

1
Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009).
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 The AFJOD resolved issues raised in defendant's motion for a new trial.

In the AFJOD, the court again found the parties equally shared responsibilities

for the children although defendant testified the oldest child (S.S.) did not stay

overnight with plaintiff during the fall of 2017 to early 2018. The court used

new income figures to recalculate child support. Under the AFJOD, plaintiff's

child support obligation increased for the two younger children from $93 to $131

per week. The amount plaintiff needed to pay for S.S.'s college was reduced to

sixty percent from sixty-five, and defendant's responsibility was increased to

forty percent from thirty-five. The trial court did not order child support for

S.S. because both parties paid his expenses for college. They "share[d]

parenting time and expenses for [S.S.]" when he was home. The court did not

provide any adjustment under Wunsch-Deffler even though it had found the

parties had "50/50 responsibilities for their children."

The SAFJOD was issued in May 2019 after the court conducted a phone

conference with the parties. The court did not change the child support

calculation, but reiterated the parties had equal responsibilities regarding their

children. It explained it had removed the Wunsch-Deffler credit in the AFJOD

because the adjustment would "cause an unjust result." This was in

consideration of "the testimony at trial and the daily expenditures for the

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children which largely fell of [sic] the defendant" and warranted the

modification. The trial court did not explain what testimony or evidence it was

referencing.

The court found no miscarriage of justice by not including a separate

amount for S.S.'s child support because both parents were sharing financial

responsibility for his college expenses, and they shared parenting time and

expenses when S.S. was home.

"The trial court has substantial discretion in making a child support

award." Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001). We "will

not overturn an award of child support unless we conclude that the award was

manifestly arbitrary, unreasonable or contrary to the evidence." Loro v.

Colliano, 354 N.J. Super. 212, 220 (App. Div. 2002). A child support award

that is consistent with the applicable law "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." Gotlib v. Gotlib, 399 N.J. Super.

295, 309 (App. Div. 2008) (internal quotation marks omitted).

In Benisch v. Benisch, 347 N.J. Super. 393, 394-95, 398 (App. Div. 2002),

the trial court calculated child support using the Guidelines, designating the

plaintiff as PPR even though the parties equally shared custody of their child.

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We reversed, explaining that "[s]ince the designations of PPR and PAR 2 are

premised on one parent having greater custodial time than the other, the normal

definition simply does not work here." Id. at 396. We noted "controlled

expenses" were twenty-five percent of the basic child support amount and, under

the Guidelines, it was assumed these were incurred by the PPR. With equal

parenting time, this assumption did not apply. Id. at 397. Benisch suggested

the defendant could receive a reduction in his support obligation of one -half of

the controlled expense portion of the basic child support where there is equal

parenting time and that the shared parenting Guidelines were appropriate to use.

Id. at 399. We noted that there could be bona fide reasons for not doing this.

Ibid. On remand, we directed the trial court to provide its reasons for

designating one of the parents as the PPR. Id. at 400. Failing that, we directed

the trial court to "make an appropriate adjustment . . . ." Id. at 400-01. The

choice of methodology rested in the trial court's discretion. Id. at 401.

In Wunsch-Deffler, 406 N.J. Super. at 508-09, the Family Court judge

addressed a situation where parents equally shared parenting time with their

children. The procedure used adjusted "the paying parent's child support

2
Parent of Alternate Residence (PAR).
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obligation to account for the fact that both parties are responsible for paying the

child's 'controlled expenses' during their parenting time." Id. at 509.

Here, the parties do not dispute they equally share parenting time with the

two younger children. The trial court did not explain why it designated

defendant as PPR in the AFJOD and SAFJOD. As was the case in Benisch, the

court is required to provide an explanation. 347 N.J. Super. at 399.

The trial court also did not explain why the Wunsch-Deffler adjustment

was applied and then removed. When it applied the Wunsch-Deffler adjustment

under the FJOD, it did not explain its calculation. It used the sole parenting

worksheet rather than the shared parenting worksheet. Ibid. If there is no bona

fide reason to designate defendant as PPR, the child support calculation should

be adjusted consistent with Benisch for the two younger children. The trial court

can use the formula in Wunsch-Deffler or an alternative if "more desirable." Id.

at 401.

Because the trial court did not provide any reason for designating

defendant as PPR and because its removal of the Wunsch-Deffler adjustment is

not consistent with its finding of shared responsibility, we reverse the court's

designation of defendant as PPR and remand the child support calculation to the

trial court. If defendant is to be designated the PPR, it must make findings to

A-4226-18
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support that based on the record. If there are not bona fide reasons, then an

adjustment for controlled expenses must be made to be consistent with Benisch.

Defendant argues plaintiff is precluded from making any adjustment under

Wunsch-Deffler because he did not previously request this, and he has not

shown a hardship. However, neither of these requirements are included in

Benisch or even in Wunsch-Deffler, nor is it equitable because the purpose of

the adjustment is to avoid the hardship of paying twice for the same expenses.

See Wunsch-Deffler, 406 N.J. Super. at 508 (an adjustment to the payor's child

support obligation was necessary "to account for the parties' shared paren ting

time and the fact that both parties were responsible for their children's controlled

expenses").

B. Income Calculation for Alimony and Other Issues

Plaintiff argues the trial court improperly calculated his income, which

affected issues such as alimony, college expenses and unreimbursed medical

expenses. Plaintiff argues the trial court should have deducted $12,000 from his

income for commuting expenses. He argues that income from another property,

the Carleton Avenue3 property, should not have been charged to him.

3
This property was owned equally by plaintiff and his business partner in the
name of a corporation that was formed to hold this property.

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 Plaintiff's annual gross income was $200,000. When the trial court

calculated alimony under the FJOD, it deducted $12,000 for estimated

commuting expenses even though plaintiff's "employer provide[d] for some

travel expenses," and the commuting expenses themselves were an estimate.

The court then added $12,000 in income from an investment property on

"Carleton Avenue," increasing plaintiff's income figure to $200,000, which was

the figure used to calculate alimony.

The trial court found defendant's income was $58,500 comprised of annual

earnings of $36,000 from her employment, $10,500 in rental income from the

marital residence, and $12,000 reflecting her one-half share of a business that

was partly owned by plaintiff called "Commack Jewelry Exchange d/b/a/ F&N

Management" (CJE). 4 The difference between their incomes was $141,500

annually.

Under the AFJOD, the trial court determined it erred in calculating

plaintiff's income. It found there was no "reliable" evidence of the $12,000 in

commuting expenses it had deducted and would not "speculate" about this.

4
Plaintiff argues that reference to the Carleton Avenue property in his income
calculation was a typographical error and that the trial court meant to say
"Commack" because it included income from "Commack" in defendant's income
calculation.

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Therefore, it increased plaintiff's income to $212,000,5 using that figure for

alimony, child support and unreimbursed medical expenses.

The trial court downwardly adjusted defendant's income to $41,200 by

removing the value of the vehicle provided by her employer for her use because

she was not able to use it for personal purposes. The court slightly reduced the

rental income she received from the marital property to $10,200. The court

determined the gap in income between the parties was $170,800. It did not

explain why income from CJE was excluded in that calculation even though it

referred later in its statement of reasons to equally dividing the income from

CJE as part of equitable distribution. The trial court applied the new income

figures for plaintiff and defendant in calculating alimony, child support, and

unreimbursed medical expenses. The trial court did not make any changes to

these amounts in the SAFJOD although it added that "[t]he inconsistent income

from [CJE], which is equal to both parties, shall not be considered in the income

calculations to either party."

We find no abuse of discretion by the trial court by not deducting

commuting expenses from plaintiff's income. Plaintiff cited no authority that

requires the trial court to make this deduction from his income. The record did

5
This continued to include the annual income of $12,000 from Carleton Avenue.
A-4226-18
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not support plaintiff's claim he was incurring expenses of $12,000 annually. His

estimated expenses were slightly more than half this amount. The court also

found that plaintiff's employer paid for some of his travel expenses. Plaintiff

could claim these expenses under Schedule B of his Case Information Statement.

We find no abuse of discretion by the trial court's elimination of income

from CJE in calculating both parties' incomes. The trial court found the income

from CJE was inconsistent and would be equally shared by both parties as part

of equitable distribution. The record supported the inconsistency.

We remand to the trial court, however, the portion of the SAFJOD that

included $12,000 annually from the Carleton Avenue property in calculating

plaintiff's income. Our review of the record shows income reported from this

property fluctuated over the years but for the most part did not exceed $12,000.

The trial court was required to explain its findings for our review. We are not

able to ascertain the basis for this $12,000 amount and thus, reverse the inclusion

of this amount and remand this issue to the trial court. This issue may affect

other issues that rely on the income calculation. If so, then the trial court will

be required to reexamine the issues that are affected.

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 C. Alimony

Plaintiff argues the trial court erred by removing the three-year alimony

credit it included in the FJOD for his payment of pendente lite expenses.

Plaintiff contends he "paid nearly every expense for the marital residence, the

children, and [d]efendant" during the three years between the filing of the

complaint for divorce and the trial, and it was appropriate to provide this credit.

The parties agreed when plaintiff moved out in August 2015, that he

would pay the Schedule A and B expenses for the family except for defendant's

vehicle. He also paid an additional $1150 per month to defendant for bills, food,

and other expenses for the children. He paid these amounts until March 2017.

In October 2017, defendant applied for a court order requiring plaintiff to pay

the Schedule A and B expenses plus an additional $1150 per month. Plaintiff

filed a cross-motion requesting imputation of income to defendant and requiring

her to contribute to expenses of the marital residence. When the pendente lite

order was entered in November 2017, the court required plaintiff to pay

Schedule A and B expenses but reduced the additional amount paid to defendant

from $1150 per month to $500 per month.

At trial, defendant testified $12,064 in bills had not been reimbursed by

plaintiff. She testified this increased to $17,418.74 by June 29, 2018.

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 Under the FJOD, the trial court ordered plaintiff to pay limited duration

alimony of $898 per week to defendant for ten years, but credited plaintiff for

three years because of the pendente lite support he paid to defendant prior to

entry of the FJOD. This effectively reduced plaintiff's obligation to seven years.

In the court's written opinion, it found "it appropriate to award [p]laintiff for

three. . . years' worth of credit whereby he paid appropriate levels of pendente

lite support to [d]efendant." The court determined that the annual alimony

amount would be one-third of the income gap between the parties calculated on

a weekly basis. The court found plaintiff had support arrears of $18,932.97.

These were to be paid to defendant at $182 per week for two years in addition

to the weekly alimony payments of $898.

In defendant's motion for a new trial, she sought to vacate the three-year

credit, arguing that to obtain it, the support must be paid pursuant to a pendente

lite support order, which was not entered until November 2017. She requested

an order granting open durational alimony. The parties had lived together in

California for three years prior to their marriage. Plaintiff's income was far more

than hers at the time, and she claimed economic dependence for those three

years. Defendant requested payment of the alimony arrears in a lump sum rather

than in installments over two-years.

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 In the AFJOD, the court addressed payments plaintiff made before the

pendente order, noting the "payments were made to maintain the status quo of

the parties, their children, and their two residences." The court noted, however,

the "payments were inconsistent throughout the pendency of the divorce." It

concluded it "was a miscarriage of justice" to have granted the three-year credit.

It vacated that portion of the FJOD.

Based on adjustments the trial court made to the parties' incomes, the gap

now was $170,800, which the court concluded required a recalculation of

alimony. The court also took into consideration defendant's mortgage and home

equity line of credit of $4,419.58. Under the AFJOD, plaintiff's alimony to

defendant increased from $898 to $1,205 per week for ten years. The ten-year

term was based on the duration of the marriage, lifestyle, ability of both parties

to obtain employment and "sacrifices made during the term of the marriage."

Plaintiff's former alimony "arrears" were recast by the trial court as "a

previously unpaid [c]ourt ordered debt." Although the amount to re-pay

remained $18,932.97, plaintiff now was required to pay this as a lump sum

"upon equitable distribution of the parties' joint marital assets," rather than over

a period of two years.

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 In the SAFJOD, the trial court repeated its finding that it was a miscarriage

of justice to grant a three-year credit for plaintiff's pendente lite payments of

support. It maintained the ten-year alimony term, requiring plaintiff to pay

alimony of $1,205 per week.

We review this issue under an abuse of discretion standard. J.E.V. v.

K.V., 426 N.J. Super. 475, 485 (App. Div. 2012). A court has abused its

discretion "if the discretionary act was not premised upon consideration of all

relevant factors, was based upon consideration of irrelevant or inappropriate

factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J.

Super. 181, 193 (App. Div. 2005).

N.J.S.A. 2A:34-23(b)(13) requires a court to consider "[t]he nature,

amount, and length of pendente lite support paid" when awarding alimony. The

language of the statute does not require that the "pendente lite support" must be

court-ordered to be considered in determining alimony. Trial "[c]ourts have the

equitable power to establish alimony . . . ." Crews v. Crews, 164 N.J. 11, 24

(2000).

In the AFJOD and SAFJOD, the trial court concluded that the previously

ordered three-year credit was a miscarriage of justice. This finding was based

on the increased gap in the parties' incomes, defendant's mortgage and home

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equity loan, duration of the marriage (seventeen years),6 lifestyle, ability of the

parties to obtain employment and "sacrifices" during the marriage. Plaintiff's

payments of pendente lite support also had been "inconsistent" and there were

significant arrears. We are satisfied the court considered the factors in N.J.S.A.

2A:34-23(b) and relied on the record in reaching a conclusion based on

sufficient credible evidence in the record, that it should not grant a three-year

alimony credit. On this record, we do not agree that there was an abuse of

discretion.

D. Support Arrears

Plaintiff argues the trial court abused its discretion by finding he owed

$18,932.97 in arrears. Although we agree there are arrears, we are unable to

determine how the trial court arrived at the amount and remand this issue to the

trial court.

Defendant testified that by June 29, 2018, plaintiff owed arrears of

$17,418.74. In the FJOD, the trial court found plaintiff had outstanding alimony

arrears of $18,932.97 "as ordered by [the judge who entered the pendente lite

award]." However, the November 2017 pendente lite order did not include a

6
The trial court rejected defendant's request to count the first three years , when
the parties resided in California before their marriage.
A-4226-18
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specific amount for arrears. In fact, the motion judge directed the parties to

reserve their arguments until the trial regarding the arrears amount. The same

arrears amount ($18,932.97) was found by the trial court in the AFJOD and

again in the SAFJOD.

The record did support the presence of arrears. Because we cannot find

support for the amount that was ordered, we reverse the amount of the arrears

and remand this issue to the trial court for additional findings. The court should

also consider plaintiff's ability to pay this amount in a lump sum as it previously

ordered.

E. Life Insurance

Plaintiff argues the requirement he maintain $600,000 in life insurance for

his alimony obligation was an error and that it should decline over time to reflect

his declining alimony obligations. Defendant argues plaintiff never asked for

this relief from the trial court and now should be precluded from this.

Under the FJOD, plaintiff was ordered to allocate $350,000 of his existing

$800,000 life insurance policy to cover his alimony obligation. The children

were named as irrevocable beneficiaries on the remaining $450,000 until their

emancipation.

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 Under the AFJOD, the court modified its allocation, ordering plaintiff to

allocate $600,000 of his $800,000 policy for alimony, with the remaining

amount ($200,000) for the children. The court continued the same requirements

under the SAFJOD.

Relevant here, none of the trial court's judgments, including the SAFJOD,

had a provision to reduce the life insurance requirement to reflect plaintiff's

declining obligation to pay alimony. Plaintiff did not ask the trial court for a

declining balance provision. We agree with defendant, therefore, that plaintiff

did not raise this issue before the trial court. Because of that , we decline to

address this argument. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973) (providing "[i]t is a well-settled principle that our appellate courts will

decline to consider questions or issues not properly presented to the trial court").

F. Sussex Turnpike Property

Plaintiff argues the trial court erred in determining the amount of equitable

distribution allocated for the Sussex Turnpike property because it did not

appropriately consider plaintiff's equity in the property or marital funds used to

repair it.

Defendant cross-appealed the same issue. She contends she should have

received a credit of $130,061 for marital funds used to purchase and to renovate

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this property. She also claims she should have received one-half of the equity

for an equitable distribution amount of $185,344.

We review the trial court's equitable distribution findings under a

deferential standard of review. Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-

83 (2016). The trial court's findings "are binding on appeal when supported by

adequate, substantial, credible evidence." Id. at 283 (quoting Cesare, 154 N.J.

at 411-12).

Under the FJOD, plaintiff was granted exclusive possession of the Sussex

Turnpike property and defendant the marital home. Plaintiff was awarded a

credit for fifty percent of the equity in the marital property. 7

The Sussex Turnpike property was found to be a marital asset and the

equity would be divided. The parties stipulated the value was $350,000. After

deducting the amount of the outstanding mortgage ($239,435.10), defendant was

credited with fifty percent of the equity or $55,282.45. She also was awarded a

credit of $7,576.48, representing fifty percent of the marital funds used to

renovate the property based on Exhibit D-37 prepared by defendant, an exhibit

7
The marital property was appraised at $520,000, had a first mortgage pf
$127,928.47 and home equity loan of $153,029.56, leaving equity of
$239,041.97 of which defendant received a fifty percent credit of $119,520.99.
This property included a rental unit within it, which rented for $875 per month.
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26
which the court found to be competent evidence. Defendant's total credit was

$62,858.93.

Under the AFJOD, the trial court increased defendant's equitable

distribution for this property to $185,500. Determining that the expense to buy

and renovate the Sussex Turnpike property was $371,000, the court awarded

fifty percent of this amount ($185,500) to defendant as a credit. It did not reduce

the $371,000 figure by the existing mortgage. The court found the $239,435.10

mortgage on the property was taken out and used by plaintiff to repay the

individuals who loaned him money to acquire and renovate the property, but not

for defendant.

Under the SAFJOD, defendant was accorded a $65,121.96 credit that the

court found represented fifty percent of the equity in the property. In its

statement of reasons, the court found the property was a marital asset and the

equity should be divided. It found the amount to renovate the property was "an

additional $65,121.96." The court again excluded consideration of the

$239,435.10 mortgage because it "was only utilized to repay monies borrowed

from sources other than the [d]efendant." It then stated, "the equity shall be

divided equally between the parties with the [d]efendant entitled to $175,686.86

. . . ." It is not clear how the $175,686.86 figure was derived using this analysis.

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 The court entered a clarifying order on May 24, 2019, based on

correspondence from the parties. In it the court stated the $175,686.86 credit to

defendant for the Sussex Turnpike property was comprised of $65,121.96,

representing "[fifty percent] of the current equity in the property" and a credit

for "[d]efendant's equitable share of the marital funds utilized by [p]laintiff to

acquire and renovate the said property, in the amount of $110,564.90 . . . ." The

court's cover letter to the clarifying order noted that the $65,121.96 was in

addition to the $350,000 stipulated value of the property less the mortgage of

"$110,564.90." The mortgage amount was $239,435.10, not $110,564.90.

The trial court's order contained errors. It is not clear how the trial court

determined the equity in this property was $65,121.96. If the stipulated value

of the property was $350,000 and the mortgage was $239,435.10, the difference

of $110,564.90 would be the equity, which when divided in half would result in

$55,282.45. The court also stated that defendant's share of the marital funds

used to renovate the property was $110,564.90, but this figure was the equity in

the property using $350,000 as the stipulated value and subtracting $239,435.10.

This figure also takes into consideration the amount of the mortgage, a figure

which the court twice said it excluded.

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 The $65,121.96 figure may have been the additional amount of marital

funds used to buy and renovate the property, but the court does not explain how

it arrived at this figure. Mathematically this is the difference between

$415,121.96, which is what defendant said was used to purchase and renovate

the property, and the appraised value of the property, $350,000. The court does

appear to have taken D-25 and adjustments into consideration. However,

$65,121.96 is not fifty percent of the equity. Thus, it is not clear how the

$65,121.96 fits into the court's equations.

It also is not clear how the court reached the figure of $175,686.86 or why

that is supposed to be half of the equity. Mathematically, the figures of

$65,121.96 (alleged to be half of the equity of the property) and $110,564.90

(the alleged equity in the property not reduced by fifty percent), when added-

up, equal $175,686.86. However, $110,564.90 is the full amount without giving

any recognition to plaintiff's fifty percent, and it does not explain the aforesaid

problems in reaching the component portions of the calculation.

We must conclude that the trial court abused its discretion on this issue.

It was the trial court's obligation to make findings of fact and conclusions of law

from the record. Our meaningful review requires an accurate explanation by the

trial court of its analysis. Although we can mathematically derive the figure of

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$175,686.86, it does not make sense in this context nor did the trial court explain

it.

Defendant argues the trial court should have awarded her half of the equity

in this property and half of the marital funds used to renovate it. Frankly, until

we are provided with a cogent analysis we can review, we cannot resolve

whether this is double counting. We reverse the equitable distribution for the

Sussex Turnpike property and remand this issue to the trial court to make

appropriate findings of fact and conclusions of law based on the record.

G. Plaintiff's Pre-marital Funds

Plaintiff argues the trial court erred by not crediting any growth in income

on his premarital funds in an investment account.

In the FJOD, the court found plaintiff invested $48,538.25 8 of premarital

funds in an investment account. Plaintiff "offered testimony . . . [about] the

average rate of return. . . since 2008." The court determined the appreciated

value of the account by using a three percent rate of return, rejecting plaintiff's

calculation that would have further increased his share of this account. The trial

court ordered plaintiff was entitled to $77,659.60 from this investment account.

8
Defendant has not challenged this amount.

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It then subtracted that amount from the account balance, dividing the remainder

between the parties on a fifty-fifty basis.

Defendant argued in her motion for a new trial that plaintiff was not

entitled to any appreciated value in this account because he did not present

expert testimony about how the account had grown.

Under the AFJOD, the trial court reduced the exempt portion of this

account to $48,537.25. This reflected only the premarital funds plaintiff

invested without any recognition for investment growth. The court rejected

plaintiff's calculations about rate of return as not reliable. 9 However, it also

concluded that it had erred in the FJOD by "sua sponte imposing any increase

that was not supported by testimony." The court removed all appreciated value,

allowing plaintiff only the amount he deposited in the account prior to his

marriage. The trial court did not modify its decision in the SAFJOD. The trial

court found it "cannot adjust the premarital asset," concluding plaintiff was only

"entitled to what was deposited."

9
Plaintiff had no statements for this account from 2001 through 2007. He used
statements from 2008 through 2018, calculating the return on investment on all
funds in the account, which by then also included marital funds, and applied that
rate of return to the premarital portion. The court rejected this, initially applying
a flat three percent return. Plaintiff did not challenge application of that rate on
appeal.

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 Property brought into the marriage by either party "will remain the[ir]

separate property . . . [and] will not qualify as an asset eligible for distribution."

Painter v. Painter, 65 N.J. 196, 214 (1974). "[I]f such property . . . later increases

in value, such increment enjoys a like immunity." Ibid. "The burden of

establishing such immunity as to any particular asset will rest upon the spouse

who asserts it." Ibid.

We conclude the trial court should have attributed an appropriate rate of

return on the premarital funds. "The goal of equitable distribution . . . is to effect

a fair and just division of marital assets." Steneken v. Steneken, 183 N.J. 290,

299 (2005) (quoting Steneken v. Steneken, 367 N. J. Super. 427, 434 (App. Div.

2004)). "[M]ere difficulty in determining the quantum of value of a party's claim

is no reason to bar that claim if it is otherwise established." Miller v. Miller,

160 N.J. 408, 424 (1999) (quoting Whitfield v. Whitfield, 222 N.J. Super. 36,

47 (App. Div. 1987)).

In Miller, 160 N.J. at 424-25, the Court found income that could have been

earned on plaintiff's investments for purposes of determining alimony should be

reasonably estimated using the average long-term corporate bond rate of return.

The Court found our trial courts were capable of this type of analysis. Id. at

424.

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 Here, the trial court should have attributed an appropriate rate of return in

light of the unchallenged appreciation in this account. We reverse and remand

this issue for the trial court to apply an appropriate rate of return.10

III.

A. Child Support for Child in College

Defendant argues in her cross-appeal that the trial court erred by not

making a separate calculation for child support for S.S., which would be in

addition to the college expenses that were apportioned based on their incomes.

In the FJOD, the trial court allocated responsibility for S.S.'s college

expenses based on the parties' proportionate incomes. In the AFJOD, the court

modified the proportions, but did not include a separate child support amount

for S.S. The trial court determined this was not a miscarriage of justice because

"[b]oth parents bear financial responsibility for [S.S.]'s attendance at college

and, when [S.S.] is home from school, the parents share parenting time with and

expenses for [S.S.]." The trial court made the same decision in the SAFJOD .

This was even though both the AFJOD and SAFJOD eliminated the Wunsch-

Deffler adjustment and designated defendant as the PPR.

10
We conclude plaintiff's further arguments under this point are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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 "The payment of college costs differs from the payment of child support

for a college student." Jacoby v. Jacoby, 427 N.J. Super. 109, 121 (App. Div.

2012) (citing Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998)

(providing "[c]hild support and contribution to college expenses are two discrete

yet related obligations imposed on parents.")). In this case, the Guidelines no

longer applied to calculate child support for S.S. because he was living away

from home at college. See Jacoby, 427 N.J. Super. at 113 (providing "[r]esort

to the [Guidelines] to make support calculations for college students living away

from home is error"). The child's support had to be calculated utilizing the

statutory factors set forth in N.J.S.A. 2A:34-23(a). Child support for the two

remaining minor children required application of the Guidelines.

Although it appears the trial court considered some of the factors under

N.J.S.A. 2A:34-23(a), such as factor 23(a)(1) "[n]eeds of the child," factor (a)(2)

"[s]tandard of living and economic circumstances of each parent" and factor

23(a)(5) "[n]eed and capacity of the child for education, including higher

education," it is not clear the trial court considered the other factors in this

statute, particularly those related to income and the parties other financial

responsibilities. It also did not explain why child support was unnecessary,

having designated one parent as PPR and having eliminated the Wunsch-Deffler

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adjustment, while at the same time finding the parties equally shared parenting

responsibilities. These outcomes appear inconsistent.

We reverse the portion of the order that omitted child support for S.S. and

remand for consideration by the trial court based on consideration of all the

statutory factors.

B. CJE

Defendant contends that plaintiff's ownership interest in CJE should have

been equally divided between the parties instead of simply apportioning its

income as the court ordered.

As explained by the trial court, "[CJE] is a relatively simple business."

Plaintiff and three other partners owned the business. Plaintiff had a 14.167%

interest. Ibid. The business "rent[ed] a large space to operate the jewelry

exchange." Ibid. It then "lease[d] or rent[ed] space to various jewelry and

eyewear businesses . . . . The partners earn[ed] money through the rents paid by

the vendors." Ibid. What they earned "varie[d] depending upon the number of

vendors and the terms of the existing leases." Ibid.

The trial court found defendant received income from CJE of $2000 per

month but there was no reliable testimony about the value of the company. In

the FJOD, the trial court equally divided plaintiff's 14.167% ownership interest,

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determining the partnership would be required to send defendant checks for

7.0835% of the monthly profits.

Defendant's new trial motion asked the trial court to distribute CJE based

on its purchase price. The court did not grant that relief but ordered the payment

method to be modified by requiring plaintiff to pay defendant fifty percent of

any income he received. The SAFJOD ordered the same. It also did not include

income from CJE in the income of either party for purposes of calculating

alimony, child support or unreimbursed medical expenses.

In the SAFJOD, the trial court explained it found plaintiff's testimony

credible about the difficulty of valuing the business, and it lacked jurisdiction

over the other business partners. Therefore, rather than divide plaintiff's

ownership percentage, it determined to "provide [d]efendant with [fifty percent]

of the income." The court found "[u]nder the circumstances, this [was] the only

equitable way to proceed with this type of business when no testimony was

provided at trial to evaluate the business or to predict future earnings."

We review these issues for abuse of discretion. See Clark v. Clark, 429

N.J. Super. 61, 71 (App. Div. 2012) (providing "[a] Family Part judge has broad

discretion in . . . allocating assets subject to equitable distribution").

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 We find no abuse of discretion regarding CJE's income. There was no

evidence to ascertain the value of this business. Its income was inconsistent.

We see no abuse of discretion by the trial court's order that the income from the

business was to be shared equally by the parties. Plaintiff even acknowledged

that if the business were sold, he would split the proceeds with defendant. We

affirm this issue with the modification that on remand, the trial court clarify that

fifty percent of any proceeds to plaintiff from the sale of this business be

provided to defendant.

C. Home Equity Loan

Defendant argues the full amount of their home equity loan should have

been allocated to plaintiff because these monies were used for various business

deals during the marriage.

With respect to this claim, plaintiff testified he used the home equity loan

for various business ventures until the line of credit was frozen in 2008. We

find no abuse of discretion by the trial court's rejection of defendant's arguments

and its conclusion that although "[p]laintiff engaged in speculative investments

without first consulting with [d]efendant," his actions "were conducted with the

best interests of the family assets, or as best as [p]laintiff comprehended same."

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 D. Attorney Fees

Defendant argues the trial court erred by denying her request for counsel

fees. She claims plaintiff acted in bad faith prior to trial.

"An allowance for counsel fees is permitted to any party in a divorce

action . . . ." Slutsky v. Slutsky, 451 N.J. Super. 332, 366 (App. Div. 2017). In

determining whether a fee award is appropriate, the court must consider:

(1) the financial circumstances of the parties; (2) the
ability of the parties to pay their own fees or to
contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties; (5)
any fees previously awarded; (6) the amount of fees
previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to
enforce existing orders or to compel discovery; and (9)
any other factor bearing on the fairness of an award.

[Ibid. (quoting R. 5:3–5(c)).]

"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) (citing Rendine v. Pantzer,

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

The trial court denied both parties requests for attorney's fees in the FJOD,

AFJOD and SAFJOD. It determined that neither party acted in bad faith during

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the litigation. Because the parties would be in similar financial circumstances

after judgments, the trial court found they each could pay their own counsel fees.

We find no abuse of discretion by the trial court. The court appropriately

considered the factors under Rule 5:3-5(c) in reaching its decision.

IV.

We reverse and remand the trial court's order: (1) determining child

support, the designation of defendant as PPR, denial of the Wunsch-Deffler

adjustment or another appropriate adjustment, and lack of child support for S.S.;

(2) including $12,000 from Carleton Avenue in plaintiff's income calculation;

(3) determining the amount of the support arrears at $18,932.97; (4) determining

the equitable distribution for the Sussex Turnpike property; and (5) failing to

include an appropriate rate of return on plaintiff's premarital funds in the

investment account. We affirm on the other issues raised.

Plaintiff's appeal is affirmed in part, and reversed and remanded in part.

Defendant's cross-appeal is affirmed in part, and reversed and remanded in part.

We do not retain jurisdiction of either appeal.

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