SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0830-16T1

B.G.,

Plaintiff-Respondent/

Cross-Appellant,

v. 

E.G.,

Defendant-Appellant/

Cross-Respondent.

___________________________________

Submitted March 21, 2018 – Decided 

Before Judges Fuentes, Koblitz and Suter.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, 

Docket No. FM-20-1592-14.

Weinberger Law Group, LLC, attorneys for 

appellant/cross-respondent (Jessica Ragno 

Sprague, on the brief). 

Steven H. Wolff, attorney for respondent/crossappellant.

PER CURIAM

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

support, equitable distribution, and life insurance portions of 

NOT FOR PUBLICATION WITHOUT THE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.

August 31, 2018
2 A-0830-16T1

the September 21, 2016 Final Judgment of Divorce (FJOD).1 

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

attorney fee provisions of the FJOD.

We reverse the child support calculation set forth in the 

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

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

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

pendente lite support arrears from August 2014 to October 2014 of 

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

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

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

inclusion in equitable distribution of any property that defendant 

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

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

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

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

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

all the remaining issues. 

 

1 We use initials in the caption for the litigants and fictitious 

names for the children to maintain their privacy. R. 1:38-3(d)(13) 

2 This is not intended to affect any other arrears that occurred 

after October 2014. 
3 A-0830-16T1

I.

A.

The parties were married in May 2000, although they started 

dating in 1988, and resided together sometime between 1992 and 

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

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

emancipated by the time the court entered the FJOD. 

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

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

having most recently been employed as the director of drug product 

manufacturing for a drug company where he earned an annual salary 

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

collecting $636 per week in unemployment benefits. Both parties 

are college educated. Plaintiff's degree is in computer 

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

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

in 1999.

Quincy suffers from autism and pervasive developmental 

delays, and requires constant supervision because of his impulse 

control and anger and frustration problems. He attends a 

specialized school, the expense of which is provided through the 

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

require continued care in the future.
4 A-0830-16T1

Plaintiff filed for divorce on April 1, 2014. Following a 

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

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

opinion. Defendant appealed the FJOD, and plaintiff filed a crossappeal. 

B.

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

suffered "irreconcilable differences for more than six months 

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

awarded joint legal custody of the three minor children to 

plaintiff and defendant. It designated plaintiff as parent of 

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

designated the PPR of Edward and granted parenting time with Quincy

and Jane. Plaintiff did not immediately have parenting time with 

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

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

for reunification therapy.

In ordering custody, the court found the testimony of the 

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

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

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

between the parties.
5 A-0830-16T1

The court interviewed the children with the exception of 

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

a number of incidents not favorable to their mother, including 

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

treated the children inconsistently by favoring the younger 

children. Edward said that one time plaintiff slapped him and 

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

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

credible way." 

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

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

recommended that Quincy remain in the marital home, if financially 

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

considered testimony from Quincy's school psychologist, nurse at 

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

of whom testified they had more interaction with plaintiff than 

defendant regarding Quincy.

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

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

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

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

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

Although both wanted custody of the three unemancipated children, 
6 A-0830-16T1

Edward's relationship with his mother was strained, according to 

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

psychological assessment of Edward's relationship with his mother 

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

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

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

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

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

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

of domestic violence. 

The court indicated that the testimony by Mary and Edward 

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

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

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

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

children "appear to be safe with both parents."

The court agreed with the custody recommendations of Dr. 

Campagna that Edward reside with defendant, and Jane and Quincy 

reside with plaintiff. She has been the primary caretaker for 

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

co-parenting counseling and reunification therapy for a more 

stable environment for the children. Quincy was stable in his 

current school as were the other children. The court found that 
7 A-0830-16T1

this custody arrangement "advances all the children's educational 

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

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

The court considered the geographic proximity of the parents, 

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

Plaintiff wanted to continue to reside there and to be near 

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

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

the children would be attending three different schools. Based 

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

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

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

miles from each other going forward in order to further parenting 

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

considered that each parent was spending "extensive time with all 

of the children."

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

in making equitable distribution of the parties' marital property.

It placed the burden of establishing that property acquired during 

the marriage was immune from equitable distribution on the party 

that asserted the immunity. 

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

they had been a monogamous couple for nearly twenty years. They 
8 A-0830-16T1

were in good health with "no documented proof of emotional 

instability." Neither had brought property into the marriage. 

They had no pre-nuptial agreement.

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

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

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

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

he purchased investment properties. They took vacations, although 

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

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

unemployment. He claimed to have borrowed money from his mother 

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

their case information statements showing that "their lifestyle 

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

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

marital lifestyle going forward." 

They had four investment properties in Pennsylvania and one 

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

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

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

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

not dispute the values of the properties or that the properties 
9 A-0830-16T1

were capable of producing income, the court ordered an appraisal 

of the properties.

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

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

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

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

transfer, nor was there a deed to evidence it.

The court appointed Dr. Charles Kincaid, a vocational

rehabilitation specialist, to evaluate plaintiff's future 

employability because she had not been in the workforce for 

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

He identified three job areas, which included computer programing,

teaching, and employment as an administrative assistant. 

The court found plaintiff credible that it would be difficult 

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

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

responsibilities, especially for Quincy. It discounted as not 

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

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

commute. The court found most credible his opinion that plaintiff 

was employable as an administrative assistant, earning 

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

that the court imputed to plaintiff.
10 A-0830-16T1

The court found defendant had the "greater earning capacity" 

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

divorce complaint was filed, including 2014, their joint tax 

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

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

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

severance package. However, that company had given him three 

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

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

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

employable in the pharmaceutical or real estate fields, that his 

unemployment was voluntary and imputed an annual income to him of 

$132,642.

The court considered that plaintiff had worked before they 

were married and afterwards contributed to defendant's "high 

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

Defendant was laid off from Merck just days before plaintiff 

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

shortly after the complaint was filed. Defendant testified that

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

connection with the investment properties, but he did not provide 

written evidence to substantiate that testimony. As such, the 
11 A-0830-16T1

court found that the Merck severance was subject to equitable 

distribution, and awarded $25,000 to plaintiff.

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

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

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

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

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

divided evenly between the parties.

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

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

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

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

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

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

notarized or witnessed. She testified their agreement was made 

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

paid back.

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

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

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

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

from Wells Fargo Bank.
12 A-0830-16T1

The court ordered that defendant was solely responsible to 

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

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

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

self-serving."

Both parties had credit card debt. Plaintiff testified she 

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

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

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

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

of their investment properties. 

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

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

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

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

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

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

defendant contended he was not in arrears, having made payments 

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

proffered supporting bank records and credit card statements. He 

claimed that plaintiff was accumulating the pendente lite payments 

 

3 The parties have not included this order in the record.
13 A-0830-16T1

to use for attorney's fees. She acknowledged she was thinking 

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

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

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

The court found that the parties' real estate was acquired 

during the marriage and was subject to equitable distribution. 

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

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

court found defendant did not meet his burden of showing that 

property was immune from distribution and found instead that "the

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

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

between the parties. The court further ordered that all the 

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

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

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

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

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

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

bank accounts. 

Defendant also had three retirement accounts. One account 

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

court ordered the even distribution of the other two; one from 
14 A-0830-16T1

Merck and one from Ophthotech, subject to qualified domestic 

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

these funds for litigation.

Plaintiff requested open durational alimony, but defendant 

only wanted to pay rehabilitative alimony. In evaluating the need 

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

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

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

"dependent on one another financially." Plaintiff contributed to 

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

children; she did not maintain her career readiness. The 

caretaking responsibilities for the children were primarily

plaintiff's, particularly for Quincy. Plaintiff was imputed

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

caretaking responsibilities." Defendant also would have 

caretaking responsibilities, but they were not as demanding as 

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

residences and that they had a middle class lifestyle but that 

neither could maintain that lifestyle going forward. 

Defendant was ordered to pay $3500 per month in open 

durational alimony because the court found exceptional 
15 A-0830-16T1

circumstances to adjust the duration of the alimony.

4 With respect 

to the duration, the court considered that the parties lived 

together "in an economically exclusive supportive relationship 

since 1992," which the court considered as equivalent to a longterm marriage of over twenty years. The court also considered 

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

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

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

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

earning capacities, investment properties, and parental 

responsibilities. The court also considered the time and expense 

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

equitable distribution of property, income available to the 

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

lite support, the parties' case information statements, and 

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

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

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

custody of Edward. 

 

4 There was a subsequent ability to pay hearing, resulting in an 

order dated April 10, 2018, that reduced the amount of alimony to 

$2420 per month with child support of $232 per month, for a total 

to be paid by defendant of $2652 per month. 
16 A-0830-16T1

The court applied the Child Support Guidelines in determining

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

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

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

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

The child support order mistakenly said the opposite- that 

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

The court ordered the parties to share equally the costs of 

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

other extracurricular activities." The court noted the equal 

division reflected their imputed incomes after alimony. The court

also addressed college expenses following its review of the factors 

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

Defendant requested an adjustment of his alimony obligation 

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

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

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

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

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

appropriate because defendant was voluntarily unemployed.

 

5 We have not detailed this part of the FJOD because neither party 

raises issues about it in the appeal. 
17 A-0830-16T1

The court ordered defendant to maintain $350,000 in life 

insurance to secure his alimony obligation with plaintiff as 

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

as beneficiaries, including Quincy. There was no similar 

obligation for plaintiff.6

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

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

finding that neither party acted more reasonably than the other, 

both parties unnecessarily increased the amount of outstanding 

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

and unsuccessful on others.

C.

On appeal, defendant contends the trial court erred by not 

giving more weight to the testimony of the children when 

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

trial court should not have restricted the residential location 

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

each other. Defendant urges us to reverse the alimony award 

because the court erred in considering the time period before they 

were married in granting open durational alimony for a period of 

 

6 The parties did not take issue with the court's order regarding 

alternating tax exemptions for the children, or defendant's 

obligation to provide health insurance for the children.
18 A-0830-16T1

time longer than they were married, and erred by trying to equalize 

their incomes and by not addressing their needs and ability to 

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

It orders defendant to pay child support to plaintiff when the 

FJOD orders plaintiff to pay child support to defendant. Defendant 

also challenges the court's separate treatment of certain 

extracurricular expenses, requiring the parties to share these 

equally when they are included in the child support amount. 

Defendant disputes the awarded equitable distribution, arguing 

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

youngest child graduates high school. He claims the court erred 

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

by including certain post-complaint assets in the distribution, 

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

certain credits.

Plaintiff's cross-appeal claims their property should not 

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

by not awarding her request for attorney's fees.

II.

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

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

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

jurisdiction and expertise in family matters." N.J. Div. of Youth 
19 A-0830-16T1

& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting 

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

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

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

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

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

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

that flow from established facts are not entitled to any special 

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

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

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

A.

Defendant contends the trial court erred by failing to give 

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

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

of discretion. 

In a custody determination, the best interest of the child 

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

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

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

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

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

Although "[t]he child has a right to be heard and voice an opinion 
20 A-0830-16T1

to the finder of fact and ultimate decision-maker[,] [t]he court 

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

317 N.J. Super. 8, 12 (App. Div. 1998). We review a custody award 

under an abuse of discretion standard, giving deference to the 

court's decision provided that it is supported by "adequate, 

substantial, and credible evidence in the record." Cesare, 154 

N.J. at 412. 

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

shows that it took into consideration all of the statutory factors 

and interviewed each of the children except Quincy. The court 

specifically discussed Edward and Mary's negative in-chambers 

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

however, that the children were rehearsed and coached because of

the consistency of their testimony. Nonetheless, the court did 

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

evaluated the testimony of the court appointed expert, who was 

found to be credible and sensible and who recommended the custodial 

arrangement that the court ordered. Our review shows there is 

substantial credible evidence in the record to support the trial 

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

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

not abuse its discretion in entering the custody order.
21 A-0830-16T1

B.

Defendant contends the court erred by restricting them from 

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

this violated his constitutional rights. Although we do not agree 

that the provision infringed a constitutionally protected right 

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

credible evidence in the record and remand for vacation of that 

provision.

The court ordered the parties "shall not move more than 

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

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

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

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

the distance between residences, it was his opinion, although 

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

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

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

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

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

Recently, the Court has clarified that the best interest 

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

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

outside of New Jersey. Bisbing v. Bisbing, 230 N.J. 309, 322 
22 A-0830-16T1

(2017). Relocation within the State is not subject to N.J.S.A. 

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

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

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

significant impact upon the relationship between the child and the 

non-residential custodial parent that may constitute a substantial 

change of circumstances warranting modification of the custodial 

and parenting-time arrangement." Ibid.

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

to advance the children's interests in maintaining contact with 

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

was not supported by substantial credible evidence in the record. 

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

between residences and acknowledged it was subjective. No one

testified about a geographic limitation. The court also did not 

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

The court did not explore whether there were other methods to 

maintain contact and, given the dysfunctional nature of the family 

relationships, made no finding that this limitation was necessary 

for the children. We therefore reverse and remand for vacation 

of that provision of the FJOD.

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

The fifteen-mile limitation did not restrict defendant's right to 
23 A-0830-16T1

travel. See Bisbing, 230 N.J. at 336. He did not argue what 

other constitutional rights were implicated, and we decline to 

speculate about that issue. 

C. 

Defendant contends the alimony award is inconsistent with law 

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

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

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

pendente lite arrears.

Alimony awards are not disturbed on appeal if the trial 

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

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

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

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

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

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

conclusions are in accordance with the governing principles. 

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

Defendant asserts the alimony award should have been limited

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

court erred by using the parties' relationship prior to marriage 

as an exceptional circumstance to warrant open duration alimony. 

Although we agree with defendant that the parties' relationship 
24 A-0830-16T1

prior to marriage in itself was not an exceptional circumstance 

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

judge that exceptional circumstances were demonstrated on this 

record without consideration of the pre-nuptial relationship.

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

supported spouse in achieving a lifestyle that is reasonably 

comparable to the one enjoyed while living with the supporting 

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

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

marital standard of living at the time of the original divorce 

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

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

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

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

along with any other factor deemed relevant.

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

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

than twenty years, unless certain "exceptional circumstances" are 

present. It states:

For any marriage or civil union less than 20 

years in duration, the total duration of 

alimony shall not, except in exceptional 

circumstances, exceed the length of the 

marriage or civil union. Determination of the 

length and amount of alimony shall be made by 

the court pursuant to consideration of all of 
25 A-0830-16T1

the statutory factors set forth in Subsection 

b of this section.

[(emphasis added).]

The statute lists a number of exceptional circumstances that may 

require an adjustment to the duration of the alimony including: 

"4) [w]hether a spouse or partner has given 

up a career or a career opportunity or 

otherwise supported the career of the other 

spouse or partner;

. . . .

6) The impact of the marriage or civil union 

on either party's ability to become selfsupporting, including but not limited to 

either party's responsibility as primary 

caretaker of a child;

. . . . 

8) Any other factors or circumstances that the 

court deems equitable, relevant and material.

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

Here, there was substantial credible evidence in this record

to support the finding of exceptional circumstances. The court 

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

which a child was born, with plaintiff's caretaking 

responsibilities for Quincy. By all accounts, Quincy has pervasive

developmental delays. He can be physically difficult to deal 

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

will be needed for him after he reaches age twenty-one. The 
26 A-0830-16T1

caretaking responsibilities "primarily belonged to plaintiff," and 

plaintiff has limited job availability because of her future 

caretaking responsibilities for Quincy and her need for 

retraining. She also has responsibilities for another minor child. 

Defendant also contends the trial court failed to meet the 

requirements of the statute when it determined the amount of 

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

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

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

statements,

7 their testimony about lifestyle and financial needs, 

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

in evaluating that the parties' lifestyle was middle class and 

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

childcare responsibilities and responsibilities for separate 

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

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

the evidence in the record and thoroughly explored and explained 

by the trial judge.

Defendant contends the trial court erred in failing to give 

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

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

 

7 Their CIS's do not reflect expenses for separate residences, 

because they still resided in the marital home during the trial.
27 A-0830-16T1

into their joint account for the July 2014 payment. Plaintiff

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

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

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

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

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

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

arrears for $8700, but gave no other explanation. 

The court did not explain why it concluded that defendant did 

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

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

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

portion of the Schedule C expenses.

8 It is not clear why a credit 

 

8 Below is a table of his payments. For the entries from August 

2014 to October 2014, defendant testified that he deposited funds 

that plaintiff withdrew.

Amount Type Date

$2900 Deposit July 2014

$125 Chase Credit Card July 2014

$125 Chase Credit Card August 2014

$247 Macy's Credit Card August 2014

$93 Macy's Credit Card September 2014

$853.68 Wells Fargo Loan Payment July 2014

$108 Wells Fargo Credit Card July 2014

$125 Chase Credit Card September 2014

$103 Wells Fargo October 2014

$93 Macy's Credit Card October 2014

$200 Deposit/Withdrawal August 2014

$142 Deposit/Withdrawal August 2014
28 A-0830-16T1

was not given. We reverse this aspect of the FJOD and remand for 

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

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

with $4,429.68, which reflected his testimony.

D. 

Defendant contends the trial court's child support orders 

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

is inconsistent with its ruling and the trial court erred in 

directing the parties to share in the costs of extracurricular 

activities. 

The trial court's "[child support] award will not be disturbed 

unless it is manifestly unreasonable, arbitrary, or clearly 

contrary to reason or to other evidence, or the result of whim or 

caprice." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Jacoby

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

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

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

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

 

$150 Deposit/Withdrawal September 2014

$150 Deposit/Withdrawal September 2014

$150 Deposit/Withdrawal October 2014

$150 Deposit/Withdrawal October 2014

$165 Deposit/Withdrawal October 2014

$1450 Deposit/Withdrawal October 2014

$4,429.68
29 A-0830-16T1

plaintiff to pay that amount of child support to defendant. We 

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

correcting the September 21, 2016 child support order to be 

consistent with the FJOD.

Defendant also contends that the trial court erred in

deviating from the child support guidelines by directing them to 

share equally the children's expenses for extracurricular 

activities. The FJOD ordered that the parties share equally the

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

sports, and other extracurricular activities." The court 

calculated child support using the Child Support Guidelines. 

Typically, school uniforms, lessons or instructions and sports 

admissions are included within the child support amount. However, 

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

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

deviation is to be specified. Child Support Guidelines, Pressler 

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

(2018). 

The trial court did not abuse its discretion in ordering that 

the extracurricular expenses be divided evenly between the 

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

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

through the payment of alimony, each paid little in child support 
30 A-0830-16T1

because of that equalization, and both were the PPR for minor

children, all of whom presumably will have extracurricular

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

discretion in requiring the parties to share these expenses.

Defendant contends that the court erred by not awarding him 

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

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

modification of pendente lite child support after a full trial did 

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

why he would be entitled to a retroactive Mallamo credit. 

E.

Defendant contends the trial court erred in awarding 

equitable distribution. He argues the trial court should not have 

restricted the sale of the marital residence until the youngest 

child graduated high school; erred in directing the sale of 

property allegedly titled to his mother; erred in including 

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

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

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

business properties. 

We review a trial judge's decisions concerning the allocation 

of assets for equitable distribution for abuse of discretion. See

Williams v. Williams, 59 N.J. 229, 233 (1971); Borodinsky v. 
31 A-0830-16T1

Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). "The 

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

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

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

must decide what specific property each spouse is eligible to 

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

purposes of distribution; and how such allocation can most 

equitably be made after analysis of the factors set forth in 

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

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

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

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

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

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

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

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

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

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

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

court, in making an equitable distribution of marital property, 

to consider the contribution of each party to the acquisition, 

dissipation, preservation, depreciation or appreciation in the 

amount or value of marital property. 
32 A-0830-16T1

The court did not abuse its discretion in ordering that the 

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

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

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

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

party's contribution to the protection and enhancement of the 

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

(App. Div. 1981). 

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

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

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

fifty percent equity interest in the property and were entitled 

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

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

pay for maintenance and expenses, an issue that requires 

clarification. We remand that issue to the trial court for 

clarification and the entry of a supplemental order.

Defendant contends the trial court erred by ordering the sale 

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

title was transferred to her before the divorce complaint was 

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

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

distribution. The court found that defendant dissipated this
33 A-0830-16T1

marital asset and that the transfer "was conducted without 

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

purchased with marital funds." 

There was no misapplication of discretion or legal error 

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

the marriage with marital funds, making the house subject to 

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

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

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

exempt from equitable distribution rests with the party claiming 

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

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

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

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

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

said property.

Defendant claims that the FJOD should not have included two 

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

include a Wells Fargo bank account and a retirement account from 

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

equitable distribution of marital assets, a marriage is deemed to 

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

commences a proceeding culminating in a final judgement of 
34 A-0830-16T1

divorce." Portner v. Portner, 93 N.J. 215, 225 (1983). In this 

case, the complaint was filed April 1, 2014. 

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

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

no testimony other than that these were all accounts acquired 

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

proving that this asset was immune from equitable distribution.

Defendant testified he lost his employment with Merck in 

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

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

The court was correct to order that plaintiff was entitled to 

fifty percent of this amount because his employment with Merck 

ended prior to the divorce and the severance amount was earned

then, even if paid later. 

After the complaint was filed, defendant was employed by 

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

employment with the company rather than take one of the other

employment options it offered him. Assets he acquired from 

Ophthotech were not marital assets subject to equitable 

distribution. To the extent the court ordered their equitable 

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

issue of excluding any Ophthotech assets from the FJOD. 
35 A-0830-16T1

Defendant contends the trial court erred in directing that 

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

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

pendente lite support to pay Schedule C expenses. Plaintiff 

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

cover Schedule C expenses.

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

is not supported by sufficient credible evidence. Plaintiff 

acquired the credit card debt after the complaint was filed. 

Although defendant acknowledged that he did not pay the pendente 

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

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

the Schedule C expenses. Defendant is responsible to pay the 

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

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

would be paying again for the Schedule C expenses without any 

support in the record for this additional payment. 

Defendant contends the trial court erred in failing to treat 

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

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

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

loans." Here, the record supported the court's findings; it did 
36 A-0830-16T1

not abuse its discretion by ordering that defendant is solely 

responsible for the "loans" from his mother. 

F.

Defendant contends the trial court should not have required 

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

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

child support obligation without also ordering the same for 

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

shall be construed to prohibit a court from ordering either spouse 

or partner to maintain life insurance for the protection of the 

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

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

statute authorized the court to require defendant to carry life 

insurance to secure his obligations for alimony and child support. 

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

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

That the court also could have ordered plaintiff to carry life 

insurance for Edward does not mean that it committed reversible 

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

situation and responsibilities at the time the FJOD was entered.

III.

Plaintiff filed a cross-appeal contending that the court

should not have divided the marital property evenly and she should 
37 A-0830-16T1

have received an award of attorney's fees. Although a court is 

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

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

evidence that the parties' finances going forward was not 

sufficient to meet their marital lifestyle. Given this financial 

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

parties' finances for the future.

Plaintiff argues the court erred by not awarding her counsel 

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

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

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

determination on counsel fees only on the rarest occasion, and 

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

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

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

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

fully supported by the credible evidence.

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

retain jurisdiction.