SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1700-19

JAMES THOMAS,

Plaintiff-Appellant/

Cross-Respondent,

v.

SHEYEAST THOMAS,

Defendant-Respondent/

Cross-Appellant.

________________________

Argued March 8, 2021 – Decided May 3, 2021

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Middlesex County, 

Docket No. FM-12-2371-18.

John P. Dell'Italia argued the cause for appellant

(Dell'Italia & Santola, attorneys; John P. Dell'Italia, on 

the briefs). 

Thomas J. Bean argued the cause for respondent

(Previte & Nachlinger, PC, attorneys; Thomas J. Bean, 

on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

The parties each appeal from certain aspects of the November 19, 2019 

order and final judgment of divorce. After a review of the respective contentions 

in light of the record and applicable principles of law, we affirm.

The parties were married in 2009. Their only child, born in 1999, was 

emancipated at the time of the divorce proceedings. When the parties separated 

in 2013, plaintiff moved to Pennsylvania where he purchased a home. 

Plaintiff filed a complaint for divorce in May 2018. Thereafter, the court 

granted defendant's motion for pendente lite support in September 2018 and 

modified it in December 2018.

The parties were unsuccessful in settling their issues and they appeared 

for trial with counsel on July 22, 2019. As the proceedings began, the Family 

Part judge noted that plaintiff's counsel had filed a motion to be relieved as 

counsel and that plaintiff "[did] not want [his attorney] to continue to represent 

him . . . ." The judge asked plaintiff if this information was correct and he 

responded affirmatively. 

The judge then inquired whether plaintiff intended to find another attorney 

or represent himself. Plaintiff responded that he "want[ed] to get some 

additional attorney help" but had not yet spoken to another lawyer. He told the 
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judge that he "[did not] know what to do." The following exchange then took 

place: 

THE COURT: You're not . . . required to have 

[c]ounsel. You can, we have plenty of people who . . . 

come into this [c]ourt and represent themselves. We 

have plenty of people . . . in your situation, where . . . 

you don't have a lawyer, the other side does. I 

personally think it's always great to have a lawyer, 

because I think . . . it's worth . . . the expense to have a 

lawyer represent you, who is familiar with the . . . 

procedures. But we have plenty of people who come in 

who are self-represented. And . . . just because 

someone has a lawyer doesn't mean that they . . . 

automatically win. I . . . have a responsibility to be fair 

to both sides, and I try to be fair. So, just because you 

don't have a lawyer doesn't mean you're going to lose. 

But if . . . you want to have a lawyer, I'll give you the 

opportunity. But it's going to have to be in a very short 

window. It'[s] going to have to be a very short period 

of time. And that, whoever . . . you retain, that lawyer 

is going to have to be told by you that they have to . . . 

be ready on the date that I give them. So, in other 

words, they're going to have to learn about the case and 

. . . come up to speed quickly. I'll do that for you.

[PLAINTIFF]: I'll try it myself. I have nothing to lose. 

I'll . . . try it. I'll do it. . . . 

THE COURT: Hold on. If you want to . . . have a 

lawyer, I'll give you the time. It's going to have to be a 

short window. That's all I'm trying to tell you.

[PLAINTIFF]: No. 
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THE COURT: Okay. I will let you go out, and you're 

going to have to pay that lawyer, and that lawyer is 

going to have to be ready on the date that I give him 

. . . or her. Do you want to go . . . out and hire another 

lawyer?

[PLAINTIFF]: No. I'll represent myself.

When the judge asked plaintiff's counsel why she wished to withdraw, she 

asserted that "[c]ommunication has definitely broken down, and the 

attorney/client relationship here is irretrievably broken at this point." She 

further represented that "[plaintiff] specifically advised that he wants to release 

me as his [c]ounsel, that he wants to proceed with a trial, and further, that he 

does not have confidence in my abilities to represent his interest at trial. " 

Defendant did not oppose the motion. 

The court granted the motion, finding the attorney-client relationship had 

"broken down" and plaintiff no longer wanted the attorney to represent him. The 

court further noted plaintiff's counsel had submitted a trial brief which laid out 

the disputed issues. Plaintiff did not request the opportunity to retain new 

counsel at any time during the trial.

The judge questioned plaintiff extensively about his position on alimony 

– plaintiff was not seeking alimony from defendant and he did not think he 

should have to pay alimony because the parties had been separated for more than 
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six years. Plaintiff testified that he worked for Amtrak, earning a yearly income 

between $140,000 and $170,000 depending on bonuses. He stated defendant 

worked as a receptionist and made $35,000 per year.

Plaintiff described the vacations the parties took during their marriage and 

the cars he and his wife owned. He gave estimates regarding the value of two 

vehicles he possessed. The parties did not have any stocks, bonds, or other 

investments.

In discussing the Pennsylvania home, plaintiff stated he purchased it in 

his own name after the parties separated and he was solely responsible for the 

mortgage payments. Defendant had not made any financial contributions to the 

home and did not live there.

On cross-examination, defendant's counsel presented plaintiff with his 

2018 W-2 reflecting a gross income of $226,000. Plaintiff also agreed he had

retirement benefits from Amtrak.

When defendant testified, she advised the court she was seeking six years 

of alimony in the amount of $793 weekly, fifty percent of the equity in the 

Pennsylvania property, and fifty percent of plaintiff's pension account accrued 

during the marriage. She also requested an award of counsel fees, stating 

plaintiff had refused to participate in good faith settlement discussions. 
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Defendant testified that her income for the previous year was approximately 

$34,000. After plaintiff cross-examined defendant, the trial concluded.

On November 12, 2019, the judge issued a well-reasoned, thorough oral 

decision. He reiterated his decision to grant plaintiff's counsel's motion to be 

relieved, stating: 

[A]t plaintiff's request I relieved [his counsel] on the 

eve of trial. [Counsel] filed a motion, and also . . . 

plaintiff no longer wanted [counsel] to represent him, 

so I relieved her at the time of trial.

At that time I also advised . . . plaintiff that I would give 

him an opportunity if he wanted to, to hire another 

lawyer. It would have to be on a very short notice and 

the lawyer would have to be prepared to go at the next 

trial date I intended to give. But . . . plaintiff was very 

clear that he did not want to hire another lawyer, he 

wanted to represent himself. He didn't want to pay for 

another lawyer and he was prepared to start the trial.

The judge further advised that plaintiff had retained counsel in September 

2019, after the trial. The judge permitted new counsel to obtain a copy of the 

trial transcript and submit a brief in addition to the brief submitted by plaintiff's 

prior attorney.

In assessing the parties' credibility, the judge found plaintiff to be a 

"serious . . . [and] hardworking man" but described his testimony as "disjointed." 

The judge found plaintiff's position on alimony was unreasonable and that he
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was "very argumentative and didn't respond to the questions" defendant's 

counsel asked on cross-examination. Ultimately, the judge found plaintiff was 

"a very average witness." 

The judge also concluded defendant was an average witness, "lacking 

credibility" and he "did not believe" certain aspects of her testimony. In short, 

the judge stated that neither party "was any better than the other." 

Turning his attention to defendant's request for alimony, the judge 

analyzed the fourteen factors enumerated in N.J.S.A. 2A:34-23(b). He indicated 

his analysis would only focus on limited durational alimony because defendant 

requested this type of alimony as the parties were only married for nine years 

and separated for almost four years. 

Under factor one—the actual need and ability of the parties to pay—the 

judge found defendant needed alimony and plaintiff "ha[d] the ability to pay." 

The court's finding was grounded in the income disparity between the parties. 

The judge also "considered but wasn't controlled by" defendant's credit card debt 

as she "did not do a good job providing information about whether those debts 

were marital debts or debts that she ha[d] accumulated once plaintiff moved out 

of the marital home." 
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The judge thoroughly considered each of the prescribed factors in turn,

finding some not applicable to the parties' circumstances. In analyzing factor 

thirteen—the nature, amount, and length of pendente lite support paid, if any—

the judge noted the initial award to defendant was $901 a week before the court 

reduced the figure to $750. In addition, the judge observed that plaintiff was in 

arrears on the revised pendente lite order, owing $11,000. He stated that he did 

not conduct a Mallamo1analysis because neither party requested it and he 

believed the modified pendente lite amount was a "pretty solid figure that was 

reasonable." 

The court awarded defendant four years of limited durational alimony in 

the monthly amount of $3263 – $39,160 per year. The judge advised that he 

considered a longer term than four years but declined to extend the period of 

alimony because of plaintiff's credible testimony that the parties had been 

separated for several years before he filed for divorce. The judge supported his 

decision by stating:

I find that . . . plaintiff has very high income.

. . . .

I also find that it's likely that . . . plaintiff will continue 

to earn at least $200,000 per year barring any 

1

 Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995). 
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unforeseen circumstances, and perhaps even higher 

with bonuses.

In addition I find that defendant's income will likely 

remain at or near $35,000. I also find that the parties 

had a relatively short-term marriage of only [nine] 

years and now they've been separated for almost [four] 

years.

In a similar fashion, the Family Court judge addressed the equitable 

distribution issue, explaining his analysis was governed by the sixteen factors 

under N.J.S.A. 2A:34-23.1. Again, the judge analyzed each factor, making 

findings on each one. Many of the factors overlapped with the findings from

the alimony analysis, several factors were either inapplicable or the judge 

concluded the parties had not presented sufficient information to support a 

determination. 

Under factor thirteen, the judge noted the $113,000 remaining on 

plaintiff's mortgage and defendant's assertion that she had $50,000 in credit card 

debt and indicated it "wasn't a dominant factor but it was a factor that [he] 

thought about in alimony." 

In considering factor sixteen, the judge stated: 

Yes, it's a short-term marriage. . . . [P]laintiff moved 

out of New Jersey to Pennsylvania in December of 2013 

as I've already mentioned. Plaintiff purchased a new 

home with his own funds. The parties have been 

separated for [four] years and defendant has received at 
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least what the [c]ourt considers to be fair, I don't want 

to use the word generous but certainly a fair alimony 

award. Those are all additional factors that I'm 

considering.

In awarding defendant twenty percent of the equity in the Pennsylvania 

property, the judge explained: 

All right, first of all, [plaintiff] has a house in East 

Stroudsburg, Pennsylvania. The house was bought in 

December of 2013 by . . . plaintiff. . . . [P]laintiff[,] the 

[c]ourt finds[,] placed a down payment on the home 

using his own funds. He was credible on that issue. 

The [c]ourt notes that . . . all of the ownership 

documents reflect . . . plaintiff's name as the sole owner, 

not . . . defendant. The [c]ourt finds . . . plaintiff has 

paid the monthly mortgage for the last several years, 

the last [five] years or so. Plaintiff lives there yearround. 

The [c]ourt also finds defendant stays there 

infrequently. The [c]ourt did not find defendant 

credible that she stays there frequently. The [c]ourt 

finds plaintiff credible that defendant stays there 

infrequently, mostly during the weekends. 

Defendant has not provided any economic contribution 

to the purchase of that home in Pennsylvania. The 

[c]ourt finds defendant did not make any improvements 

to the property in Pennsylvania. The [c]ourt finds that 

plaintiff did not give any of her funds to that home. The 

[c]ourt finds plaintiff did not take any steps to help 

improve the interior or exterior of the home through any 

work or sweat equity.
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The [c]ourt also finds . . . defendant's job is exclusively 

in Metuchen, New Jersey, or at least Central New 

Jersey. The [c]ourt finds that the home was not 

purchased with marital assets. The [c]ourt also finds 

that . . . her request to have a [fifty-fifty] share is not 

fair to . . . plaintiff. Therefore, the decision which will 

be announced in a minute will take all of those factors 

into consideration. 

The [c]ourt notes that the value of the home . . . is 

$165,000. The current balance [owed on the mortgage] 

as of August 2019 was $113,000. The [c]ourt notes that 

it's now November 12, 2019, and obviously the 

mortgage will be less than that figure. 

The [c]ourt . . . rules that the parties will determine the 

mortgage balance as of this date, November of 2019. 

The value will be $165,000 which was, that was proofs 

supplied by plaintiff, and the current balance will be 

subtracted. From that net figure . . . defendant will be 

awarded only [twenty] percent of the equity. . . . 

[P]laintiff in his case and in the briefs supplied by his 

lawyers did not want to pay anything or did not want 

the [c]ourt to rule that defendant was entitled to any 

portion.

[D]efendant's position of course was that, . . . [she]

should get [fifty] percent. The [c]ourt considered all of 

the arguments and the [c]ourt now makes the ruling that 

defendant will only be entitled to [twenty] percent of 

the equity, not [fifty] percent, [twenty] percent after the 

current mortgage balance is deducted. 

The [c]ourt rules and the [c]ourt finds that this is fair 

and believes it's fair for the following reasons. First of 

all, we have a short-term marriage of only [nine] years. 

The [c]ourt . . . also factored in that plaintiff was living 
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alone for [four] years. I also find that I've given what I 

consider to be a relatively fair and substantial alimony 

award.

I also find that the house is the most substantial asset. 

I also find that . . . plaintiff is the one who has kept that 

asset up and has maintained and made all of the 

payments. I also find that defendant has not proven any 

contribution economic or otherwise. Therefore I 

believe a [twenty] percent figure is fair. The [c]ourt 

also understands and recognizes full well that to a very 

large extent any decision might be perceived as 

arbitrary, whether it's [ten] percent or [twenty] percent 

or [thirty] percent. The [c]ourt factored in . . . the shortterm marriage and the fact that the parties have been 

separated for quite a period of time. There's no 

substantial science to this but I believe that factoring all 

of these things into consideration [twenty] percent is 

fair.

The court also ordered that each party would keep their own bank accounts 

as neither party had shown the existence of any joint accounts, and they would

evenly split the marital coverture portion of defendant's 401(k). 

The judge then addressed plaintiff's tier one and tier two pension benefits. 

The court agreed with the parties that the tier one pension was not subject to 

equitable distribution because it was "very similar" to federal social security 

benefits and its value could not be determined at that time. However, the court 

noted that defendant was entitled to any potential future survivor benefits. In 

contrast, the court found the tier two pension was subject to equitable 
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distribution. The court ordered the parties to evenly split the marital coverture 

portion of the pension. 

In addressing the parties' respective vehicles, the court stated: 

The [c]ourt will note that there are two Kawasaki 

motorcycles. The parties did not do a good job 

providing any information about the values of the 

vehicles other than plaintiff's testimony that the Audi 

. . . was purchased for [$]80,000 and now has a value 

of about [$]40,000. 

We didn't have any other proofs, we didn't have 

Kell[e]y Blue Book value or those kind of things. So 

this is what the [c]ourt has done with regard to the 

vehicles. . . . [P]laintiff will keep the two Kawasaki 

motorcycles. 

. . . .

With regard to . . . plaintiff's Audi, it has equity of 

$40,000 according to plaintiff's testimony. . . . 

[D]efendant will receive $20,000 of this, . . . which 

represents one-half of the current value as of September 

2019. The [c]ourt finds that that car was purchased 

during the marriage with marital funds.

Defendant will keep the motorcycle that she has. 

Defendant will also keep the Acura TL car that she has. 

However, with regard to the Acura TL that she has, . . . 

her lawyer will obtain a Kell[e]y Blue Book value for 

that vehicle. And then the parties will evenly split the 

equity of that vehicle. So they're going to split the 

equity in the Audi, they're going to split the equity in 

the Acura TL and they're each going to keep their 

motorcycles, plaintiff is going to keep two, defendant 

will keep one.
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The court made additional rulings not challenged by the parties.

In considering defendant's request for attorney's fees, the judge stated he 

considered the factors under Rule 5:3-5. He concluded the "parties acted in good 

faith," adding that although plaintiff's original position on alimony was 

unreasonable, it did not rise to the level of bad faith. Moreover, the judge stated, 

defendant received a "fair and relatively substantial alimony award" and a "fair 

equitable distribution award . . . ." Therefore, in considering all of the 

circumstances, the judge found defendant was not entitled to an award of 

attorney's fees. 

The court's rulings were memorialized in a November 14, 2019 order and 

judgment of divorce. 

On appeal, plaintiff challenges the court's order relieving his trial counsel, 

and its rulings in the final judgment of divorce regarding alimony, the equitable 

distribution of the Pennsylvania property, his tier two pension, and the parties'

vehicles. In a cross-appeal, defendant challenges the equitable distribution of 

the Pennsylvania property and the denial of her request for counsel fees.

In reviewing a non-jury trial, this court defers to a trial judge's factfinding 

when supported by adequate, substantial, and credible evidence. Cesare v. 

Cesare, 154 N.J. 394, 412 (1998). We do "not weigh the evidence, assess the 
15 A-1700-19

credibility of witnesses, or make conclusions about the evidence." Mountain 

Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008). 

Where there is "satisfactory evidentiary support for the trial court's 

findings . . . [we] should not disturb the result . . . ." Clark v. Clark, 429 N.J. 

Super. 61, 72 (App. Div. 2012) (citing Beck v. Beck, 86 N.J. 480, 496 (1981)). 

Deference is especially appropriate in bench trials when the evidence is "largely 

testimonial and involves questions of credibility." Cesare, 154 N.J. at 412. A 

"trial judge who observes witnesses and listens to their testimony . . . is in the 

best position to make first-hand credibility judgments about the witnesses who 

appear on the stand." Slutsky v. Slutsky, 451 N.J. Super. 332, 344 (App. Div. 

2017) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 

(2008)). 

Therefore, we will "not disturb the 'factual findings and legal conclusions 

of the trial judge unless [we are] convinced that they are so manifestly 

unsupported by or inconsistent with the competent, relevant and reasonably 

credible evidence as to offend the interests of justice.'" Cesare, 154 N.J. at 412

(quoting Rova Farms Resort v. Inv. Ins. Co., 65 N.J. 474, 484 (1974)).

We begin by addressing plaintiff's argument that the trial judge mistakenly 

exercised his discretion in permitting trial counsel to withdraw on the day of 
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trial. He asserts the court should have given him more time to "contemplate and 

decide whether he wanted to hire another attorney." 

We discern no mistaken exercise of discretion in the court's determination 

to relieve plaintiff's counsel. Counsel explained to the court that the relationship 

was "irretrievably broken," there was no longer any communication between 

herself and plaintiff, and plaintiff no longer wanted her services. Moreover, 

plaintiff himself affirmed to the court that he no longer wanted to be represented 

by counsel. 

After its ruling, the court offered plaintiff an adjournment to retain new 

counsel. Plaintiff declined the proffered delay in the proceedings and stated he 

wanted to represent himself. The court confirmed plaintiff's intentions several 

times.

Moreover, counsel submitted a trial brief on plaintiff's behalf setting forth 

his position on the disputed issues. The court conducted an extensive inquiry of 

plaintiff and permitted him to cross-examine defendant. And, when plaintiff did 

retain new counsel two months after the completion of the trial, the court 

permitted new counsel to obtain a transcript and submit a closing brief.

Plaintiff was given numerous opportunities to adjourn the trial and retain 

new counsel. He declined the court's offers. He cannot now, in hindsight, after 
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the court issued its decision, claim the court erred when it only complied with 

plaintiff's stated wishes – to undertake the trial self-represented.

In turning to the award of alimony, plaintiff contends the trial court abused 

its discretion in calculating the amount of alimony awarded to defendant because 

it "failed to take into consideration and apply the appropriate weight to multiple 

important, relevant factors." We disagree.

"A Family Part judge has broad discretion in setting an alimony award and 

in allocating assets subject to equitable distribution." Clark, 429 N.J. Super. at

71 (citation omitted). "Of course, [as to alimony] the exercise of this discretion 

is not limitless[,]" and is "frame[d]" by 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).

A proper alimony award "assist[s] the supported spouse in achieving a 

lifestyle that is reasonably comparable to the one enjoyed while living with the 

supporting spouse during the marriage." Tannen v. Tannen, 416 N.J. Super. 

248, 260 (App. Div. 2010) (quoting Steneken v. Steneken, 183 N.J. 290, 299 

(2005)). "[A] judge awarding alimony must methodically consider all evidence 

to assure the award is 'fit, reasonable and just' to both parties, N.J.S.A. 2A:34-

23, and properly balances each party's needs, the finite marital resources, and 
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the parties' desires to commence their separate futures, N.J.S.A. 2A:34-23(c)." 

Gnall v. Gnall, 432 N.J. Super. 129, 149 (App. Div. 2013). 

Here, the trial judge explained that, given the short-term nature of the 

marriage, it would only focus on limited durational alimony. Thereafter, the 

court thoughtfully considered each of the fourteen factors under N.J.S.A. 2A:34-

23(b) before rendering its decision. The court reasoned: 

[P]laintiff can afford this payment based upon his 

salary. The [c]ourt finds . . . defendant has the need. 

The [c]ourt finds that the parties enjoyed a lifestyle that 

can be described as middle-class to upper middle-class. 

Therefore, the [c]ourt placed serious consideration not 

only [on] the need and the ability to pay, but also the 

marital lifestyle.

In addition the [c]ourt considered a higher term beyond 

the [four] years, but in the end . . . plaintiff prevailed to 

a point that the parties really have been separated for 

several years before the complaint was filed. I found 

that . . . plaintiff was credible.

And therefore, I believe that [four] years at the rate that 

I just covered is fair, is very fair to both parties. But 

particularly I think this will help . . . defendant. It's a 

fair award for her.

The court's findings were supported by credible evidence in the record. 

There was a significant income disparity between the parties, with plaintiff 

making $226,000 in 2018 compared to defendant's $33,587.60. There was also 

ample evidence of the parties' "middle-class to upper middle-class[]" standard 
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of living from the parties' testimony about their "frequent vacations,"

"timeshares in exotic places[,]" weekly date nights going "out to dinner and 

maybe even a movie[,]" "several cars and motorcycles[,]" and health club 

memberships. 

Plaintiff has not demonstrated a mistaken exercise of discretion. The trial 

judge correctly applied and considered the relevant statutory factors in rendering 

an alimony award that was within his discretion and supported by evidence in 

the record. 

There also was no error in the court's order of pendente lite support. In a 

matrimonial matter, "the court may make such order as to the alimony or 

maintenance of the parties . . . as the circumstances of the parties and the nature 

of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. Pendente 

lite awards are intended to "prevent irreparable harm and to preserve the status 

quo . . . pending the full investigation" of a matter. Mallamo, 280 N.J. Super.

at 11-12.

Here, the court originally awarded defendant pendente lite alimony in the 

amount of $901 a week and then reduced the award to $750 a week after plaintiff

moved for reconsideration. Although plaintiff did not request a Mallamo

analysis at trial, the court itself addressed it, stating it was unlikely to grant such 
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relief because the award made "after the motion for reconsideration was a . . . 

pretty solid figure that was reasonable." 

Plaintiff contends on appeal that the court failed to consider the parties'

lengthy separation in its award of pendente lite support. However, the parties 

both testified that their relationship continued during their separation, including 

spending time together and with their extended families, celebrating holidays 

and traveling. 

We discern no mistaken discretion in the order of pendente lite support or 

the order for payment of the arrears.

In turning to the order for equitable distribution, both parties challenge 

the award to defendant of twenty percent equity in the Pennsylvania house. 

Plaintiff contends defendant should not get any equity in the home as he is solely 

responsible for the mortgage and all related expenses. Defendant asserts she is 

entitled to fifty percent of the value of the property.

In addition, plaintiff contends the court erred in equally dividing his tier 

two pension and ordering him to pay defendant $20,000 for her share of the 

Audi's value.

The purpose of equitable distribution is to divide property acquired during 

the marriage in a manner that is just under the circumstances of the case. Painter 
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v. Painter, 65 N.J. 196, 209 (1974). When equitably distributing marital 

property, a judge must "decide[] what specific property of each spouse is eligible 

for distribution, . . . then determine its value for purposes of such distribution, 

and [lastly,] decide the most equitable allocation between the parties after 

analysis of the statutory factors set forth N.J.S.A. 2A:34-23.1." Genovese v. 

Genovese, 392 N.J. Super. 215, 225-26 (App. Div. 2007) (citing Rothman v. 

Rothman, 65 N.J. 219, 232 (1974)). Property need not be equally allocated if 

the "sole ownership or allocation of a major share to one of [the parties] is 

warranted by all the financial and personal considerations underlying the 

equitable distribution plan." Daeschler v. Daeschler, 214 N.J. Super. 545, 553 

(App. Div. 1986). 

We evaluate Family Part decisions concerning equitable distribution 

under an abuse of discretion standard. See Borodinsky v. Borodinsky, 162 N.J. 

Super. 437, 443-44 (App. Div. 1978). When applying that standard, "[w]e must 

determine 'whether the trial court mistakenly exercised its broad authority to 

divide the parties' property or whether the result reached was bottomed on a 

misconception of law or findings of fact that are contrary to the evidence.'" 

Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012) (quoting Genovese, 

392 N.J. Super. at 223). We will affirm an equitable distribution award if "the 
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trial court could reasonably have reached its result from the evidence presented, 

and the award is not distorted by legal or factual mistake." La Sala v. La Sala, 

335 N.J. Super. 1, 6 (App. Div. 2000) (citing Perkins v. Perkins, 159 N.J. Super.

243, 247-48 (App. Div. 1978)).

As stated above, after considering the statutory factors, the trial judge 

made extensive and thoughtful findings in reaching his determination regarding 

the equitable distribution of the Pennsylvania house. It was a short-term 

marriage, the parties were separated for four years, and plaintiff purchased the 

home just after the separation and continuously lived there. Plaintiff was solely 

responsible for the mortgage payment and all expenses related to the home. 

Defendant had spent some holidays and a few weekends at the home during the 

five years plaintiff owned it.

Given these circumstances, it was well within the trial court's "broad 

authority" to fashion the distribution of the property on a less than even split. 

The parties have not demonstrated the factual findings were unsupported by the 

evidence. To the contrary, the court was thorough in explaining the reasons for 

its findings and the equitable distribution of the property. We discern no reason 

to disturb the award.
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We also see no misapplication of discretion in the equitable distribution 

of the parties' vehicles. The court relied on plaintiff's own testimony regarding 

the value of his Audi and ordered plaintiff to pay defendant half of its residual

value. Moreover, plaintiff has not produced any evidence to contradict the 

court's assessment.

We next address plaintiff's tier two pension. For the first time, plaintiff 

contends these pension benefits are only subject to equitable distribution if the 

spouses are married for ten years. He cites to 45 U.S.C. § 231 (The Railroad 

Retirement Act of 1974) without any further specific argument to support his 

proposition.2

Generally, pensions are subject to equitable distribution under New Jersey 

Law. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 496 

(1995) (citing Marx v. Marx, 265 N.J. Super. 418, 425 (Ch. Div. 1993)). It is 

"well established that the right to receive benefits accruing to a spouse 

subsequent to a divorce are subject to equitable distribution if they are related 

to the joint efforts of the parties." Marx, 265 N.J. Super at 425 (citations 

2

In the appendix provided with the reply brief, plaintiff includes two pages 

from an unnamed source discussing the tier two benefits. These documents were 

not provided to the trial court. We note only that the documents refer to a 

divorced spouse's right to an annuity, not a division of the pension benefit. 
24 A-1700-19

omitted). Courts often award a "coverture fraction" in which the numerator "is 

the period of pension plan participation during the marriage and the denominator 

is the total period of plan participation necessary to the receipt of benefits." Ibid.

(citation omitted). 

Plaintiff has failed to point to any language in the Railroad Retirement 

Act of 1974 to contradict New Jersey's general policy of subjecting pensions to 

equitable distribution. And, neither of his counsel raised the issue in their 

respective briefs. Therefore, we "decline to consider questions or issues not 

properly presented to the trial court when an opportunity for such a presentation 

is available unless the questions so raised on appeal go to the jurisdiction of the 

trial court or concern matters of great public interest." Selective Ins. Co. of Am. 

v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 

62 N.J. 229, 234 (1973)). 

The trial court did not err in ordering an even split of the marital coverture 

fraction of the tier two pension benefits for the nine years the parties were 

married. If the pension cannot be divided pursuant to a QDRO as ordered, the 

parties should make the appropriate post-judgment application before the trial

court.
25 A-1700-19

In her cross-appeal, defendant contends the trial court abused its 

discretion in denying her request for counsel fees. The assessment of counsel 

fees is discretionary. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444

(2001); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). In our 

review, "[w]e 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)).

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

Rule 5:3-5(c), subject to the provisions of Rule 4:42-9. Here, the judge denied 

the request for fees after considering all of the factors under Rule 5:3-5 and RPC 

1.5(a). The court noted that it considered whether plaintiff acted in good faith, 

the alimony and equitable distribution awards, the arrears payment, and the 

parties' four-year separation. We are satisfied the determination was the product 

of a careful consideration of the applicable factors and was not a mistaken 

exercise of discretion.

Affirmed.