SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 19 BRIAN M. STEINER, Plaintiff

- Res pondent/ Cross

- Appellant,

v. ANN E. STEINER, Defendant

- Appellant/ Cross

- Respondent

.

________________________

Argued November 3, 2021

– Decided November 23, 2021 Before Judges Fisher, De A lmeida and Smith. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM

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- 17. Andrew M. Shaw argued the cause for appellant/cross

respondent (Shaw Divorce & Family Law LLC, attorneys; Andrew M. Shaw, on the brief s ). Britt J. Simon argued the cause for respondent/cross

appellant (Simon Law Group , LLC , attorneys; Joel Friedman, on the brief s ).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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PER CURIAM
D efendant Ann Steiner appeals, and plaintiff Brian Steiner cross

- appeals, from various portions of an amended final judgment of divorce and a subsequen t order addressing counsel fees. Other than remanding for findings about a $75,000 counsel fee award in Brian's favor, we find no merit in the parties' arguments and affirm. The parties were married in 1986 and have two adult children. Brian filed a compla int seeking a divorce in 2016 . After a considerable period of discovery and a sixteen

- day trial occurring over non - consecutive days starting in October 2018 and ending in May 2019 , the trial judge rendered thorough findings of fact. In his equitable

- distri bution rulings, the judge largely divided the parties' assets equally except he awarded Ann one - third the value of Pioneer Box Company,
Inc. , a close corporation formed by Brian that was the source of his income during the marriage. The judge also awarded various other credits to the parties and granted Ann open durational alimony of $10,500 per month. The appeal and cross

- appeal raise numerous issues , all of which were fully explored during the lengthy trial

. T he parties testif ied at length as did : their t wo3 A

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children 1 ; Kalman Bar s on, an accountant who testified for Brian about Pioneer's value; Jerome Kootman, an accountant who testified for Brian about the parties' tax returns; David Murphy, a private investigator who testified for Brian about surveillance conducted on Ann; Ilan Hirschfeld, an accountant who testified for Ann about Pioneer's value; Mark Tinder, an appraiser who testified for Ann about the value of the marital home; Steven Lieberman, Esq., who testified for Ann regarding the real estate tran sactions involving Ann's mother; and Thomas Folk, Ph.D., who testified for Ann about the value of the art and collectibles in the marital home. Well into the trial, the judge expressed frustration with the parties' failure to provide sufficient information about their property and appointed as his own expert, William J. Morrison, CPA, of With u mSmith+Brown, PC, who provid ed reports and testified at length. The judge rendered his oral opinion on May 14, 2019 , resolving numerous hotly

- contested fact disputes

. The parties thereafter had d ifficulties agreeing on a suitable judgment of divorce conforming to the judge's decision , and motions inevitably followed. Ultimately, on the dangling counsel

- fee issue, the judge awarded Brian $75,000 , but h e did not elaborate as to how that number was

1 The parties' son and daughter were born in 1993 and 1997, respectively. The trial judge found both were emancipa ted.4 A

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reached except to note a reduction in the award Brian sought was appropriate because Ann's counsel did "more than anybody else" to "bring finality" to the impasse about the form of the judgment of divorce

. In app roaching the many issues raised by the parties in their cross

- appeals , we observe that o ur standard of review requires deference to judge

- made fact findings supported by substantial credible evidence , Cesare v. Cesare , 154 N.J. 394, 413 (1998) , and that st andard is fully applicable here

. Satisfied , also, that the judge applied correct legal princip le s, and finding no abuse of discretion in his determination on the numerous issues criticized by both parties, we affirm, except we will remand for further consi deration and additional findings on the $75,000 fee award. We briefly explain our disposition of some of the issues the parties have raised about: (1) alimony; (2) the awarding to Brian of a Mallamo 2 credit; (3) the valuation of Pioneer and how it was distributed; (4) Ann's claim to a credit for advanced equitable distribution to Brian; (5) the valuation of the marital artwork, jewelry, and furnishings; (6) Ann's claim to a violation of her due
proces s rights with regard to Morrison's testimony; (7) the imposition of a bar

2 Mallamo v. Mallamo , 280 N.J. Super. 8 (App. Div. 1995) (recognizing the authority to provide a credit that accounts for a pendente lite support award that proved, after trial, to be too high or too low).5 A

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on Ann's communications to Pioneer clients as a condition of her receipt of alimony; and (8) counsel fees.
I In affirming the judge's alimony determination, we reject Ann's argument that the judge miscalculated or misconstrued the parties' mar it al lifestyle and Brian's income. In crafting the alimony award , the judge considered all the factors delineated in N.J.S.A. 2A:34

- 23 ( b )

. The marriage lasted for thirty years. The judge found Brian in excellent health and Ann in poor health. As to the factors described in subsection (5) and (6) of N.J.S.A. 2A:34

- 23(b), the judge found Brian will continue to have an income but, because of her health, Ann cannot work . The judge also found each party will receive substantial assets due
to his equitable

- distribution determinations . Both parties were fully educated before they me t . Regarding the history of financial and non

- financial contributions to the marriage, the judge found Ann "didn't do a lot of things around the home that many stay

- at

- home parents do" because of her medical condition. The judge recognized each party received "very substantial" equitable

- distribution awards , approximating $ 4,000,000 each, and that Ann could earn $2 , 000 per month from investment income

. Among other things, the judge considered and rejected an imputation of income to Brian based on a claim6 A

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of underemployment , finding he is "working hard enough to service and g row his business ." The goal i n fixing a proper award of alimony 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). A judge has broad discretion in this regard, Clark v. Clark , 429 N.J. Super. 61, 71 (App. Div. 2012) , and, because of the particular expertise of family judges, we accord considerable deference. Although our deference is not "limi tless ," we will not intervene if the judge has "frame[d]" his rulings with the statutory factors set forth in N.J.S.A. 2A:34

- 23(b). Steneken v. Steneken , 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified , 183 N.J. 290 (2005). In short, we will not disturb an alimony award if the judge's conclusions are consistent with the law and not "manifestly unreasonable, arbitrary, o r clearly contrary to reason or to other evidence, or the result of whim or caprice." Foust v. Glaser , 340 N.J. Super. 312, 31 6 (App. Div. 2001) ; s ee also
J.B. v. W.B. , 215 N.J. 305, 326 ( 2013) (invoking the same test when reviewing an order granting or denying an application to modify child support)

. We are abundantly satisfied there is no principled reason for appellate interve ntion here. The judge systematically and carefully addressed all the7 A

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appropriate statutory factors and considered the parties' case information statements, their testimony about lifestyle and financial matters, and all the written evidence in determining t he parties' lifestyle.
We reject Ann 's argument that the judge made inconsistent and deficient findings regarding the marital lifestyle in his alimony determination. The judge provided a thorough discussion of the marital standard of living while correctly recognizing it was very difficult to accurately ga u ge the parties' lifestyle here since neither party produced any evidence of their pre - 2016 spending

. The judge , however, found Ann 's case information statements to be "incredibly unreliable

. " For example, Ann asserted she incurred $141,197 in monthly
expenses ; this included sums for her own alcohol and tobacco use even though she testified she neither smoked nor drank. The judge found her alleged monthly
expenses included some "outrageous sums , " which "just have to be simply discarded

. " He found Brian 's case information statement s were "closest" to reality and that Brian's May 10, 2017 case information statement , which listed total mont hly expenses slightly under $10,000 , was the most accurate indication of the marital lifestyl e . With some sensible adjusting because of increasing health insurance costs, eliminating college and litigation costs, and increasing the savings component , t he j udge concluded the monthly marital lifestyle8 A

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amounted to $13, 10 0 . From that, the judge subtracted the $2 , 000 in investment income available to Ann , and $1 , 500 for one half of the $3 , 000 marital savings component attributable to Brian, the reby reach ing the award of $10,500 per month in open - durational alimony. The totality of the circumstances, as demonstrated by the evidence found credible , supported the judge 's factual underpinnings and ultimate conclusion about a fair and equitable level of alimony. We reject the suggestion that the judge's findings in this regard were unsupported by the evidence he found credible, let alone "manifestly unreasonable, arbitrary, or clearly contrary to

rea son or to other evidence, or the result of whim or caprice." Foust , 340 N.J. Super. at 316.
II Ann argues the judge erred in awarding Brian a Mallamo credit of $140,000 and in failing to award her any such credit. We disagree. It would have been inequitab le to deny Brian a Mallamo credit. T h e pendente lite order required Brian's payment of $22,000 per month ; the ultimate alimony award revealed that the pendente lite level was far too high and, to equitabl y adjust for that circumstance, the judge found Brian entitled to a credit9 A

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for the $7 , 000 monthly excess he had paid for twenty months, for a total credit of $140,000. As we recognized in Mallamo , p endente lite support orders are subject to retroactive adjustment both prior to and at the time of t he final judgment

. Se e also Slutsky v. Slutsky , 451 N.J. Super. 332, 368 (App. Div. 2017). A fair and equitable final adjustment should account for a mistakenly high or low pendente lite support award, and the judge acted well within his discretion here. W e find no merit in Ann's argument to the contrary.
III The judge fixed Pioneer's value at $1,300,000 as of December 29, 2016, and awarded Brian sole ownership of Pioneer while determining that Ann was entitled to compensat ion for one

- third the value, there by awarding her a credit of $429,000. He rejected Ann's claim for one

- half of the cash in Pioneer's business account, finding no support for that argument because the cash was reflected in the value of the business. Ann argues the judge erred in evaluating Pioneer by failing to consider Morrison's cash flow analysis , by improperly reduc ing her share as a sanction for bad faith, and by fail ing to account for Pioneer's undistributed cash.10 A

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The judge , in a lengthy and thorough analysis, acknowledg ed the issue was "complicated." He determined that Pioneer was an "active, profitable" business which was not in financial distress , but which had lost certain major
customer s in the two years before trial . The judg e found Brian made all reasonable efforts to keep the business running and "worked very hard" to build and maintain the business, while Ann contribut ed "little or nothing" to its growth and maintenance

. The judge also found that cars, rent, and travel expe nses were "run through the business" and family members were put on the payroll, s o that Pioneer's true operating expenses were un clear . For this reason , he concluded the "valuation calculations are more accurate when annual revenues as opposed to annual n et profits" are used

. Barson used "gross receipts" and Hirschfeld used both "net sales" and "revenue" to determine Pioneer's value . The judge found b oth experts knowledgeable, credible, and thoroughly prepared , and further found that Barson's testimony on the impact of the loss of Volvo was more persuasive, while Hirschfeld's testimony suggesting the use of the income approach to value, instead of the asset approach, was most persuasive. The judge also found that fixing Pioneer's value as of a date certain, such as the date of the complaint, while "ignoring the proven decrease" in revenues11 A

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"would not be fair

. " He thus credited Hirschfeld's "income approach" valuation of $1,520,000 as the "most sensible" value of the company, because it utilized
actual result s of operations from 2017 and the first half of 2018. But the judge also determined that that value had to be adjusted downward because Pioneer's growth rate , as opined by Hirschfeld, was "simply too high ," culminating in a determination fixing Pioneer's value at $1,300,000

. The judge explained all these findings in his thoughtful oral opinion; those findings are deserving of our deference. In determining how to allocate Pioneer's value between the two marital partners, the judge concluded it would be inequitable to divide it equally because of Ann 's bad faith, "designed solely to harass the plaintiff, disrupt his business, annoy the business customers, and damage the value of Pione er . " Ann's bad faith was further revealed by her service of subpoenas on Pioneer's clients , a step the judge found was intended to "upset" Brian. That, as well as the fact that Ann had not contributed to Pioneer's growth , and that Pioneer's appreciation wa s brought about solely by Brian's efforts, the judge awarded Brian sole ownership of Pioneer, with a thirty

- three percent credit, or $429,000, to Ann

.

" There are probably few assets whose valuation imposes as difficult, intricate and sophisticated a task as interests in close corporations." Lavene v.12 A

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Lavene , 148 N.J. Super. 267, 275 (App. Div. 1977). Although there are different valid approach es to valuation of close corporations, "[f]lexibilty must be the byword in determining which approach is best" bec ause "valuation is an art rather than a science." Steneken , 183 N.J. at 297. The " goal is to arrive at a fair market value [ for a business ] for which there is no market." Bowen v. Bowen , 96 N.J. 36, 44 (1984). There is also " no absolutely iron

- clad rule for determining the date of

e valuation but use of a consistent date is preferable, such as the filing of the complaint, or perhaps the time of the hearing, depending on the nature of the asset and any compelling equitable consider ations. " Bednar v. Bednar , 193 N.J. Super. 330, 332 (App. Div. 1984). A "proper factor in th at determination is any significant change in the valuation . . . that occurs prior to final judgment." Scherzer v. Scherzer , 136 N.J. Super. 397, 400 (App. Div. 1975). The judge appropriately considered all evidence in the record regarding the appropriate valuation method and the value itself

. He thoughtfully described the reports and testimony from Barson and Hirschfel d , and adopted Hirschfeld's valuation usin g the discounted cash flow method, based on the income approach, and adjusted that figure to account for a reduced growth rate consistent with the13 A

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testimony a bout the loss of clients

. We have been presented with no principled reason for second

- guessing the experienced judge's determination. We reject any remaining aspects of Ann's arguments about Pioneer 's value and how it was equitably distributed, finding those arguments to be of insufficient merit to warrant further discussion in a written opinion

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IV
Ann argues that the judge erred in failing to award her a credit for Brian's advance on equitable distribution. She allege d that Brian took "$600,000 and at least another $187,491.91" when he was only permitted to take $500,000

. T he ju dge , however, found Brian credible when he testified that the only advance he received on equitable distribution was the $187,491.91 he withdrew from Magyar Bank in August 2017, that was ultimately returne d

. His moving of $600,000 in Pioneer funds was not an advance on equitable distribution.
V The judge awarded sole possession of the artwork, jewelry, and furniture remaining in the marital home to Ann, and awarded Brian a credit of $75,000, representing half its total value which the judge fixed at $150,00 0. Ann argues14 A

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that the judge erred in his valuation of marital artwork, jewelry, and furnishings. We again disagree. The judge considered the conflicting evidence , including Ann 's assertions that she spent $2 , 500 per month on art for approximately ten year s, totaling $300,000, though she acknowledged it was worth less than $300,000 . She also testified she possessed jewelry worth at least $10,0 00, and she claimed she spent significant sums on furniture, including more than $9 , 000 for a couc h. Folk appraised the artwork in the marital home , finding it worth $6 , 900 while the furniture , in his view, was worth $5 , 125. The judge primarily credited Ann 's testimony that she spent $2 , 500 per month on artwork for ten years. He found the parties owned at leas t two valuable paintings, a Ferjo which cost $9 , 000 , and a Diehl , which cost $12,000. The judge acknowledged but did not entirely credit Folk's appraisal and awarded sole possession of all artwork, jewelry, and furniture remaining in the marital home
to An n , while award ing Brian a credit of $75,000, representing half its total value

. The judge's findings are entitled to our deference. His estimate of the total value of the marital artwork, jewelry, and furniture was supported by evidence found credible . Alt hough the valuation is well below Ann 's high estimate of15 A

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$300,000 for the artwork alone

– an estimate revealed by cross

- examination of Ann as excessive

– it is higher than the appraisal because of testimony about the value of certain pieces of art, and it reflects the judge 's consideration of items omitted from the appraisal including Ann 's jewelry worth more than $10,00 0, and expensive furnishings , among other things. Further supporting this valuation is Ann 's case information statement, which listed $1 , 800 per month for art upkeep and care, and $700 per month in jewelry acquisition and care, suggesting an extensive collection of such items.
VI
Ann argues the judge violated her constitutional right to due process through Morrison's invol vement in the trial. Specifically, she refers to the fact that the judge limited the parties to an hour each for examination of Morrison that she claims "unreasonably restricted" her ability to review Morrison's reports, cross

- examine him, and introduce re buttal testimony. At the trial's conclusion, the judge addressed the se concerns, concluding that the parties had "ample opportunity to be heard" throughout the l engthy trial. The reference in support of this argument to Morrison's report as being a 400

- pa ge document was misleading , as th e report included exhibits ; the text of16 A

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Morrison's initial report was seventeen pages and his supplemental report only
seven pages. Due process is a flexible concept that "depends on the particular circumstance s ." Doe v. Poritz , 142 N.J. 1, 106 (1995). It requires adequate notice and the opportunity to be heard , Harrison Redevelopment Agency v. De R ose , 398 N.J. Super. 361, 403 (App. Div. 2008) , which is further understood as an opportunity to be heard at a meaningfu l time and in a meaningful manner , Klier v. Sordoni Skanska Const. Co. , 337 N.J. Super. 76, 84 (App. Div. 2001). We
agree "[e]agerness to move cases must defer to our paramount duty to administer justice in the individual case , " Audubon Volunteer Fire Co. No. 1 v. Church Const. Co. , 206 N.J. Super. 405, 406 (App. Div. 1986) , and t he "rights of the parties to a full and fair hearing are paramount , " J.D. v. M.D.F. , 207 N.J. 458 , 481 (2011) , b ut judges are accorded "wide discretion in exercising control ov er their courtrooms , " Martin v. Newark Pub. Sch s . , 461 N.J. Super. 330, 340 (App. Div. 2019) , and broad discretion in controlling cross

- examination , State v. Jenewicz , 193 N.J. 440, 467 (2008)

. Ann was not deprived of her due process rights because she wa s not entitled to unlimited time to examine witnesses. Indeed, t he parties' failure to properly prepare for trial caused extensive delays17 A

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– and, indeed, justified the appointment of Morrison

– and the record reveals that the judge accommodated the parties c onstantly throughout the lengthy trial

. It is clear to us that the parties both had ample opportunity to question and elicit information from Morrison. He testified in detail about his reports , and the judge allowed follow

- up testimony from the parties t hemselves to clarify any ambiguities they believed were revealed in Morrison's testimony. Further, as the judge found, the parties had several months of communications with Morrison in which they narrowed the issues for his reports and testimony. His reports themselves were concise and easily digested and the parties had his reports in hand nearly a month before h e testi fied

. There was no violation of Ann's due process rights.
VII As part of the judgment of divorce, the judge deemed it appropriate to limit Ann's communications about Pioneer, providing that, as a "condition of the alimony" she was granted, Ann was pr ohibited from contacting customers, suppliers, and anyone associated with Pioneer, or to make criticism or disparaging comments about Pioneer or Brian on any social media platform. Ann
argues that t his provision improperly restrict s her constitutional righ t to free speech

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The restriction was triggered by the defense 's issu ance of subpoenas to five of Pioneer's customers, requesting:

1. All records related to products bought from and any other business or prospective business conducted with, Plaintiff, Bri an Steiner (born December 15, 1956; Social Security Number

. . . ) in his personal capacity, and/or in his capacity as the owner and/or employee of Pioneer Box Company, Inc., including but not limited to the following, for the period commencing January 1, 2 016 through the date on which records are produced: a. Any and all records reflecting the amount of sales, orders, and other business conducted with Brian Steiner, Pioneer Box, or any other entity owned by or affiliated with Brian Steiner; and b. All cancelled checks (both front and back) for all payments made thereto. At the trial's conclusion, the judge alluded to these subpoenas in support of his decision to a ward Ann less than fifty percent of Pioneer's value. In so doing, the judge found Ann had acted in bad faith in issuing the subpoenas , which he found were "designed solely to harass [Brian] , disrupt his business, annoy the business customers, and damage the value of Pioneer

. " He also found the issuance of the subpoenas violated an earlier orde r that barred service of subpoenas on non

- parties.19 A

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The authority of a party to issue a subpoena duces tecum under the court's seal is " significant " and " must be exercised in good faith and in strict adherence to the rules to eliminate potential abuses." Ca vallaro v. Jamco Prop. Mgmt. , 334 N.J. Super. 557, 569 (App. Div. 2000) ; s ee also Crescenzo v. Crane , 350 N.J. Super. 531, 533

- 34 (App. Div. 2002)

. The need for attorneys and parties to proceed in good faith when invoking the subpoena power is particularly

" heightened in matrimonial matters, as the issuance of unauthorized subpoena [ s ] , especially in post

- judgment family motion practice, presents great potential for abuse. " Welch v. Welch , 401 N.J. Super. 438, 445 (Ch. Div. 2008). The experienced judge correctly recognized the potential harm in both the issuance of subpoenas to Pioneer's customers and in any future communication by Ann with Pioneer's cu stomers. The judgment provides Ann with compensation for her interest in Pioneer and she will therefore have no ongoing interest in that company except to the indirect extent it provides a livelihood to Brian, who is obligated to pay her alimony. Her commu nications can only serve
to roil the waters and jeopardize the status quo on which her receipt of alimony is dependent. To be sure, "[e]very person may freely speak, write and publish

. . . sentiments on all subjects, being responsible for the abuse of that right." N.J.20 A

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Const. , art. I , § 6. In our constitutional democracy, the right to express oneself enjoys the fullest and firmest protection. In re Hinds , 90 N.J. 604, 61 3

- 1 4 (1982)

. In co nsidering any limitation on free speech rights, a court "must weigh the gravity and probability of the harm caused by freely allowing the expression against the extent to which free speech rights would be inhibited or circumscribed by suppressing the expre ssion." Id

. at 614. In this setting, while unusual, restraints on speech have been utilized to protect a party's interests from undue interference. For example, in Borra v.
Borra , 333 N.J. Super. 607, 608 , 613 (Ch. Div. 2000), a trial judge issued an injunction prohibiting a former husband from contesting his former wife's application for membership in a country club because the children were "significantly involved in Club activities " and would be harmed if the husband objected to the wife's application. While the circumstances here differ from
Borra , the approach is the same. The restriction on speech here was limited and designed to protect the very thing that generates the income from which alimony will be paid to Ann . We see no constituti onal infirmity in preventing a matrimonial litigant from damaging the structure of a judgment of divorce through reckless communications like those the judge sought to prevent here

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- trial phase, ruled that Ann should pay Brian $75,000 in fees. We find no cause to intervene in the judge's findings about Ann's bad fa i th, but w e will remand for further consideration and, certainly, further findings

– as required by Rendine v. Pantzer , 141 N.J. 292 (1995)

– as to how $75,000 was determined to be a reasonable fee. We, thus, remand for further findings on that issue.
* * * For the se reasons we reject all the parties' arguments posed in their appeal and cross

- appeal. T hose arguments we have not expressly address ed lacked22 A

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sufficient merit to warrant discussion. R. 2:11

- 3(e)(1)(E). We remand only for the judge's findings as to the quantification of the $75,000 fee award in Brian's favor

. Affirmed in part and remanded in part. We do not retain jurisdiction.