SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4423-18T3

K.M.L. (n/k/a K.M.Z.),

Plaintiff-Respondent,

v.

R.J.L., 

Defendant-Appellant. 

_______________________

Submitted September 16, 2020 – Decided 

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Ocean County, 

Docket No. FM-15-1345-15. 

Stolfe Zeigler, attorneys for appellant (Abigale M. 

Stolfe and Valerie W. Voreis, on the briefs). 

Matthew R. Abatemarco, Esq., LLC, attorneys for 

respondent (Gregory B. Thomlison, on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 8, 2020
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In this divorce proceeding, defendant R.J.L.1appeals from the custody, 

equitable division, debt allocation, child support, and counsel fee award 

aspects of an April 26, 2019 final judgment of divorce (FJOD) that was 

entered following a two-day default hearing conducted after defendant's 

answer and counterclaim were stricken. We affirm in part and vacate and 

remand in part. 

We derive the following facts from the record. Plaintiff K.M.Z. 

(formerly known as K.M.L.) and defendant were married in May 2007. 

Plaintiff is a Certified Public Accountant. Defendant is a ship/yacht captain 

who runs trips in Florida and the Caribbean during the winter and until June, 

then returns and runs trips in the Northeast. 

In July 2010, the parties had their only child, C.L., who is autistic and 

suffers from Attention Deficit Hyperactivity Disorder, Expressive 

Communication Disorder, unspecified Disturbance of Conduct, and PostTraumatic Stress Disorder that require multiple medications and significant 

therapy. He attends a special needs school and receives treatment from several 

medical professionals. 

1

 We identify the parties and their son by initials to protect their privacy. R.

1:38-3(d)(3). 
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Plaintiff left the marital home in January 2015 and obtained a Temporary 

Restraining Order (TRO) against defendant under the Prevention of Domestic 

Violence Act, N.J.S.A. 2C:25-17 to -35, which was later dismissed in favor of 

a January 28, 2015 civil restraints agreement. On May 7, 2015, plaintiff filed 

for divorce. Soon thereafter, defendant moved to Florida where the record 

indicates he still resides. Defendant did not file an answer in the divorce 

action, leading to the entry of a July 13, 2015 order of default against him. On 

September 29, 2015, the default was vacated after defendant entered an 

appearance. In October 2016, Defendant subsequently filed an answer and 

five-count counterclaim.2 

Meanwhile, in May 2015, plaintiff obtained a second domestic violence 

TRO against defendant that was also later dismissed in favor of civil restraints. 

In August 2015, plaintiff obtained a third domestic violence TRO against 

defendant which he later consented to converting to a final restraining order. 

Following a status conference on May 10, 2018, the court entered an 

order that stated: "The defendant has failed to cooperate with the Custody 

Neutral Evaluation (CNA) . . . which was ordered more than one (1) year ago." 

2

 Counts one and three alleged causes of action for divorce. Count two 

alleged frivolous litigation. Count four alleged negligent passage of a venereal 

disease. Count five sought punitive damages. 
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The order further stated: "If defendant intends on calling any type of expert 

with regard to custody [or] parental alienation, he is to hire such expert and 

provide a report to the [c]ourt and the [p]laintiff's attorney at least thirty (30) 

days prior to the trial date in August." 

The court noted that its review of the file "does not indicate that the 

[d]efendant has complied with previous [o]rders with regard to either a 

psychological [or] psychiatric evaluation." The order also noted defendant 

was served in court with the requests for admission propounded by plaintiff 

and directed him to answer the requests within thirty days of the date of the 

order or they will be deemed admitted. 

After several years of contentious litigation, a trial adjournment due to a 

conflicting surgery defendant scheduled, and a Division of Child Permanency 

and Placement investigation, the trial court conducted the final pre-trial 

conference and entered a July 9, 2018 order that scheduled trial for August 7 to 

August 8, 2018. It provided the date was set with the consent of both parties 

and "shall be considered a firm date. No request for an adjournment shall be 

entertained absent showing of exceptional circumstances." By this point, 

defendant had dismissed several attorneys and was proceeding pro se. 
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The judge also directed the parties to submit a pre-trial memorandum 

"with legal analysis and documentation including pre-marked exhibits" at least 

seven days before trial. He included the following language in the order: 

"[a]ll expert reports and discovery to be used in the trial hav[e] already been 

produced except for the [CNA], which is still pending." The judge put the 

parties on notice that "[f]ailure to comply with this [o]rder may result in 

sanctions and dismissal of pleadings." 

The trial date was again adjourned at defendant's request because he 

claimed he did not have sufficient funds to travel from Florida to New Jersey 

as a result of losing his job in early June 2018. During an additional August 3, 

2018 conference, the court re-listed the trial for a peremptory date of October 

22 to October 25, 2018, beginning at 9:00 a.m., and advised defendant that 

"should he choose not to appear, the court would entertain an application by 

[plaintiff] to strike the [d]efendant's pleadings and proceed by way of default." 

Defendant acknowledged under oath that he fully understood the court's 

position. The court reiterated that failure to comply with the July 9, 2018 

order or this order "may result in sanctions and dismissal of pleadings." 

Defendant did not appear on time for trial. After waiting thirty-five 

minutes, the court called defendant, who explained that he had "just gotten to 
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New Jersey." Defendant informed the court that he would be arriving in thirty 

minutes and that he desired another adjournment to obtain an attorney. 

Defendant arrived in court some forty minutes later. After briefly 

addressing the issue of retaining counsel, he went off on a tangent and made 

various accusations against plaintiff. In response, plaintiff moved to strike the 

defendant's pleadings and to proceed by way of default. Plaintiff noted that 

defendant "was aware that the trial dates were peremptory" and that the court 

had the power to strike defendant's pleadings if he was not ready to proceed 

with trial. Additionally, plaintiff noted defendant's failure to respond to 

plaintiff's requests for admissions—served on him three separate occasions—

would lead to "a trial by ambush as [p]laintiff has no idea what [d]efendant 

will attempt to argue." 

This led to the trial court entering an October 24, 2018 order striking 

defendant's pleadings, permitting plaintiff to file a notice of proposed final 

judgment pursuant to Rule 5:5-10, 3and allowing the matter to proceed to 

default. The court then scheduled the default hearing for December 5, 2018. 

3

 Rule 5:5-10 provides that "[i]n those cases where equitable distribution, 

alimony, child support and other relief are sought and a default has been 

entered, the plaintiff shall file and serve . . . a Notice of Proposed Final 

Judgment" at least twenty days before the hearing that sets forth: 
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On December 4, 2018, the court conducted a pre-hearing conference 

concerning defendant's request for adjournment of the default hearing. During 

the conference, defendant claimed he had not received the notice of proposed 

final judgment4and was unable to attend the hearing the next day. He also 

inappropriately informed the judge that she "needed to pick different courses at 

Judicial College" concerning family law and referred to plaintiff's attorney in a 

derogatory fashion. The court determined there was insufficient time allotted 

for the default hearing that would require a full day. It directed plaintiff to reserve defendant with the notice of proposed final judgment and re-scheduled 

the default hearing for January 31, 2019. 

On December 31, 2018, defendant's newly retained counsel moved to: 

(1) vacate default; (2) accept defendant's witness list; (3) accept defendant's 

the proposed trial date, a statement of the value of 

each asset and the amount of each debt sought to be 

distributed and a proposal for distribution, a statement 

as to whether plaintiff is seeking alimony [or] child 

support and, if so, in what amount, and a statement of 

all other relief sought, including a proposed parenting 

time schedule where applicable.

4

 Plaintiff's counsel provided the court with a certification of service contrary 

evidence indicating that the notice of proposed final judgment was sent to 

defendant by certified mail, return receipt requested, as well as regular mail. 

The certified mail was not signed for and returned. The regular mail was not 

returned as undeliverable. 
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trial exhibit list; and (4) appoint a limited guardian to assist defendant in 

making trial decisions due to his alleged longstanding psychiatric issues. On 

January 24, 2019, the court accepted defendant's witness and exhibit lists but 

denied his request to vacate default and to appoint a guardian ad litem. 

The two-day default hearing took place in January and February 2019. 

Both parties appeared with counsel and testified. Defendant also called his 

mother as a witness. On March 22, 2019, the court issued a comprehensive 

sixty-three-page default hearing decision. Pertinent to this appeal, the court: 

(1) awarded plaintiff sole legal and residential custody of C.L.; (2) set 

defendant's child support obligation at $183 per week; and (3) awarded 

plaintiff certain credits for counsel fees and marital property. The court denied 

plaintiff's request for limited duration alimony. The decision was embodied in 

an April 26, 2019 final judgment of divorce. This appeal followed. 

Defendant argues the trial court erred by: (1) failing to vacate 

defendant's default; (2) failing to award joint legal custody of the minor child; 

(3) failing to consider the best interests of the child; (4) failing to evenly 

divide the parties' retirement account; (5) failing to award defendant a credit 

toward his child support obligation for maintaining health insurance for the 
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benefit of the minor child; and (6) failing to accept evidence of defendant's 

missing Rolex watches. 

Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J. 

394, 411 (1998). Reviewing courts "accord particular deference to the Family 

Part because of its 'special jurisdiction and expertise' in family matters." Harte 

v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. 

at 412). Generally, "findings by the trial court are binding on appeal when 

supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 

411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 

474, 484 (1974)). Courts will not disturb the factual findings and legal 

conclusions unless convinced they are "so manifestly unsupported by or 

inconsistent with the competent, relevant and reasonably credible evidence as 

to offend the interests of justice." Ricci v. Ricci, 448 N.J. Super. 546, 564 

(App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. 

Div. 2015)).

"Discretionary determinations, supported by the record, are examined to 

discern whether an abuse of reasoned discretion has occurred." Ibid. (citing 

Gac v. Gac, 186 N.J. 535, 547 (2006)). An abuse of discretion occurs when a 

trial court makes "findings inconsistent with or unsupported by competent 
10 A-4423-18T3

evidence," utilizes "irrelevant or inappropriate factors," or "fail[s] to consider 

controlling legal principles." Elrom, 439 N.J. Super. at 434 (citations and 

quotations omitted). An abuse of discretion can also be found if the court 

"fails to take into consideration all relevant factors[,] and when its decision 

reflects a clear error in judgment." State v. C.W., 449 N.J. Super. 231, 255

(App. Div. 2017) (quoting State v. Baynes, 148 N.J. 434, 444 (1997)).

Reviewing courts do not accord special deference to the Family Part's 

interpretation of the law, D.W. v. R.W., 212 N.J. 232, 245 (2012) (citation 

omitted), and review legal determinations de novo. Ricci, 448 N.J. Super. at 

565 (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).

A.

Defendant argues that the trial court's "refusal to vacate default was a 

mistaken exercise of discretion." While acknowledging that the case was 

several years old, he claims there was little prejudice to plaintiff in vacating 

default that could not have been cured by awarding counsel fees. Defendant 

also asserts that due to the default he "was precluded from asserting any 

affirmative requests for relief, greatly prejudicing him especially in connection 

with his requests for joint legal custody and parenting time with his young 

son." We are unpersuaded by this argument. 
11 A-4423-18T3

A trial court may vacate the entry of default upon "good cause shown." 

R. 4:43-3. "Good cause" as used in this rule means "the presence of a 

meritorious defense . . . and the absence of any contumacious conduct." 5

O'Connor v. Altus, 67 N.J. 106, 129 (1975). We review the denial of a motion 

to vacate default for abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume, 

209 N.J. 449, 467 (2012). 

When it entered default, the trial court explained that defendant 

has intentionally prolonged the litigation 

unnecessarily and in bad faith. Moreover, in complete 

disregard of all prior [c]ourt [o]rders, [d]efendant has 

chosen to conduct this litigation as he believes that 

same should be conducted. The [c]ourt indicated in 

prior [o]rders that, should the parties not comply with 

the provisions therein, that the parties could be subject 

to sanctions or a dismissal of their pleadings. The 

[c]ourt could no longer countenance [d]efendant's 

disregard for the Rules of Court. The [c]ourt was 

convinced that [d]efendant understood that the trial 

dates for October were firm dates and that the request 

for an adjournment served only to further prolong the

litigation. The [c]ourt was also convinced that 

[d]efendant had notice of and understood that the 

[c]ourt would consider this remedy if he either failed 

to appear or was not prepared to go forward on the 

date of trial. 

5 Defendant states that a "'meritorious defense' is hard to apply to a divorce 

matter," and does not address it. 
12 A-4423-18T3

Defendant subsequently retained new counsel and moved to vacate the 

entry of default. The trial court denied the motion and held the entry of default 

was appropriate based on its findings, because defendant provided no 

additional information that would warrant reconsideration. 

When determining whether good cause exists, the trial court generally 

considers the movant's "absence of any contumacious conduct." O'Connor, 67 

N.J. at 129. Here, the judge found defendant "intentionally prolonged the 

litigation unnecessarily and in bad faith" and continuously disregarded the 

court rules. Moreover, defendant acknowledged under oath that he understood 

he would be required to be prepared for trial on October 22, 2018. Instead, he 

arrived nearly two hours late and requested a third adjournment to retain 

counsel after dismissing several previous attorneys. This clearly impacted 

judicial efficiency and economy. 

Defendant's conduct also prejudiced plaintiff. Defendant did not timely 

respond to requests for admission or supply requested documents. His failure 

to provide discovery thwarted plaintiff's ability to accurately determine his 

income, including the rental income he received. Defendant also provided no 

financial information regarding RJL Yachts. These deficiencies led to plaintiff 

filing multiple enforcement applications, increasing her legal fees. 
13 A-4423-18T3

When defendant ultimately submitted a self-prepared Case Information 

Statement on the eve of trial. In addition to being woefully late, it was of 

limited time frame. Defendant's witness list included five witnesses: 

defendant, plaintiff, defendant's mother, and defendant's brother Vincent. 

Notably, defendant did not list any experts. His exhibit list included a 

psychological report and the CNA. 

An August 3, 2018 CNA was prepared by Sean R. Evers, Ph.D. It noted 

that C.L. is treated by a pediatrician, developmental pediatrician, psychiatrist, 

psychologist, and neurologist. C.L. also has an Applied Behavioral Analysis 

technician, a social worker, and a case manager. His therapy and treatment 

include weekly psychologist appointments, semi-annual developmental 

pediatrician visits, monthly psychiatrist visits, nine hours of autism therapy per 

week, and weekly neurofeedback sessions. C.L.'s medications were listed as 

Ritalin, Depakote, Abilify, Remeron, Guanfacine ER, and Seroquel. 

The CNA noted C.L.'s need "for consistency in his life" and "the various 

treatments he receives." Dr. Evers concluded the parties "have not shown any 

ability to communicate productively with each other," which is "a basic 

requirement in any shared custody/parenting time arrangement" that "is made 

even more critical when [C.L.'s] condition is factored in."
14 A-4423-18T3

Dr. Evers found that while plaintiff "presented a thorough and granular 

understanding of her son's needs," defendant "does not appear to fully 

understand [C.L.'s] condition and the importance of consistency and 

predictability for him." Dr. Evers opined that C.L.'s "need for a consistent 

environment precludes a flexible approach to parenting time" and that 

defendant "should consider entering individual therapy to help him better 

understand his son's needs and limitations." 

An August 3, 2018 psychological evaluation report noted defendant 

"presented with an unusual number of psychological symptoms which may be 

an indication that he was exaggerating the extent of his current problems." 

The report further noted defendant "has acknowledged the extent of his 

wrongdoings and fully understands the negative impact it had (and continues 

to have) on both his wife and son. He also understands that his inability to 

contain his anger problems served as the primary reason why both family 

members left him." 

During the default hearing, defendant was permitted to extensively 

cross-examine plaintiff, call his own witness, seek affirmative relief, and 

testify himself. He testified at length as to custody and parenting time. That 

degree of participation is significantly greater than usually permitted during a 
15 A-4423-18T3

default hearing. The trial court considered the parties' testimony and the other 

evidence adduced during the hearing. We discern no abuse of discretion. 

B.

Defendant argues the trial court erred in awarding plaintiff sole legal and 

residential custody of C.L. by failing "to analyze the evidence pursuant to . . . 

N.J.S.A. 9:2-4 and the standard of the best interests of the child." He contends 

the court should have awarded joint legal custody "with physical custody to 

only one and liberal visitation rights to the other." We disagree. 

Our Legislature has determined "that it is in the public policy of this 

State to assure minor children of frequent and continuing contact with both 

parents after the parents have . . . dissolved their marriage." N.J.S.A. 9:2-4. 

Further, "it is in the public interest to encourage parents to share the rights and 

responsibilities of child rearing in order to effect this policy." Ibid. In a 

proceeding concerning the custody of a minor child, the judge may award joint 

custody, sole custody with a provision for "appropriate parenting time for the 

noncustodial parent," or another arrangement that "the court may determine to 

be in the best interests of the child." N.J.S.A. 9:2-4(a) to (c). When deciding 

custody, the court must consider the following factors:

the parents' ability to agree, communicate and 

cooperate in matters relating to the child; the parents' 
16 A-4423-18T3

willingness to accept custody and any history of 

unwillingness to allow parenting time not based on 

substantiated abuse; the interaction and relationship of 

the child with its parents and siblings; the history of 

domestic violence, if any; the safety of the child and 

the safety of either parent from physical abuse by the 

other parent; the preference of the child when of 

sufficient age and capacity to reason so as to form an 

intelligent decision; the needs of the child; the 

stability of the home environment offered; the quality 

and continuity of the child's education; the fitness of 

the parents; the geographical proximity of the parents' 

homes; the extent and quality of the time spent with 

the child prior to or subsequent to the separation; the 

parents' employment responsibilities; and the age and 

number of the children.

[N.J.S.A. 9:2-4(c).]

The focus of this inquiry is "the best interests of the child." Ibid.; 

Sacharow v. Sacharow, 177 N.J. 62, 80 (2003). Although joint legal custody 

may be preferred in certain cases, as it may "foster the best interests of the 

child," Beck v. Beck, 86 N.J. 480, 485, 488 (1981), the decision concerning 

the type of custody is left to the sound discretion of the trial court, Pascale v. 

Pascale, 140 N.J. 583, 611 (1995).

In Nufrio v. Nufrio, 341 N.J. Super. 548 (App. Div. 2001), we explained 

how the relationship between parents should guide judges in deciding whether 

to award joint legal custody: 
17 A-4423-18T3

[T]he prime criteria for establishing a joint legal 

custodial relationship between divorced or separated 

parents centers on the ability of those parents to agree, 

communicate and cooperate in matters relating to the 

health, safety and welfare of the child notwithstanding 

animosity or acrimony they may harbor towards each 

other. The ability of parents to put aside their 

personal differences and work together for the best 

interests of their child is the true measure of a healthy 

parent-child relationship. A judicial custody 

determination must foster, not hamper, such a healthy 

relationship. Therefore, a parent's amenability or 

inability to cooperate with the other parent are factors 

to be considered in awarding joint legal custody.

[Id. at 550.]

In this matter, the trial court considered the statutory factors enumerated 

in N.J.S.A. 9:2-4(c) and made the following findings:

(1) "[T]here is no communication between the 

parents" and plaintiff has an active final restraining 

order6against defendant. "Defendant . . . will not be 

able to effectively co-parent with [p]laintiff until he 

completes the psychiatric and psychological treatment 

previously ordered, which he has yet to complete." 

"To date, [p]laintiff, through the imposition of 

6

 In awarding temporary custody under the Prevention of Domestic Violence 

Act, the court "shall presume that the best interests of the child are served by 

an award of custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11). 

This presumption does not apply in divorce proceedings. R.K v. F.K., 437 N.J. 

Super. 58, 63-64 (App. Div. 2014). Instead, the divorce court should consider 

decide custody under a best interests analysis employing the factors set forth in 

N.J.S.A. 9:2-4, including "the history of domestic violence." Id. at 67. The 

trial court did not apply a presumption in favor of plaintiff and instead applied 

the N.J.S.A. 9:2-4 factors. 
18 A-4423-18T3

previous court orders has essentially been the sole 

legal custodian of the child. Plaintiff has been 

responsible for communicating with all providers for 

the child, including medical, dental, educational, and 

mental health practitioners."

(2) "Plaintiff has essentially had sole legal and 

residential custody of the child since the parties 

separated." "Defendant . . . has not had any 

unsupervised parenting time with [C.L.] since January 

of 2015."

(3) "Plaintiff is fully engaged with [C.L.] and shares a 

special bond with him." "Defendant spent a 

significant portion of time [away] from [p]laintiff and 

[C.L.] during the marriage due to his employment as a 

boat captain in Florida for a significant portion of each 

year." 

(4) Plaintiff sought relief from domestic violence on 

three occasions, resulting in two TROs that were 

dismissed in favor of civil restraints. An active FRO 

remains in place. 

(5) "Defendant represents a risk until his mental health 

needs are addressed. Defendant must learn to address 

his anger issues and learn coping mechanisms." His 

"mental health state" is "explosive. One cannot be 

certain what is going to set him off." 

(6) C.L. is not of sufficient age and capacity to form 

an intelligent decision as to his preference for custody.

(7) C.L. "has very significant special needs and 

behavioral issues" requiring "numerous professionals" 

for his treatment. "Plaintiff has been able to provide 

[C.L.] with access to a structured program which 

presently provides all components of his treatment and 
19 A-4423-18T3

education in one location." Defendant's "insight into 

the severity of [C.L.'s] disability is quite limited." 

(8) Plaintiff resides with her parents in Toms River 

while defendant lives in "a condominium in Florida" 

and "rents out an extra bedroom in the condo to 

another adult male. He has also indicated to the 

[c]ourt that the condo is going into foreclosure." 

There is no evidence that defendant "has any sort of 

residential security for himself, let alone a child."; 

(9) C.L. "is presently attending a very structured 

program at Rutgers with mental health, behavioral and 

educational components. This provides an excellent 

opportunity to have all of the disciplines actively 

involved with the child on a regular basis." 

(10) Although both parties "are fit parents," 

defendant's "parenting time has been progressively 

limited due to his inability to abide by court orders 

and to control his emotions." 

(11) Plaintiff resides in Toms River while defendant 

resides approximately 1200 miles away in Florida. 

(12) "Plaintiff has always been actively engaged with 

[C.L.] and they share a deep bond." She has always 

been C.L.'s primary caretaker. "[D]uring the course of 

the marriage, [d]efendant was frequently away from 

the home for extended periods of time as a result of 

his employment obligations." 

(13) "Throughout the course of the marriage, 

[d]efendant has always been a ship captain who is 

involved with fishing tours and the like. In addition, 

. . . he has taken numerous side jobs, moving the 

yachts from one location to the other." Conversely, 

plaintiff is a certified public accountant who "at 
20 A-4423-18T3

present [is considering] part-time employment in the 

near future if [C.L.] remains stabilized at his present 

program." 

(14) C.L. "is the only child of the marriage. Neither 

party has any other children."

The court also noted that C.L. has a variety of medical issues and 

"requires maintenance medications, home therapy as well as a very specialized 

education and mental health treatment program." 

After considering these factors, the court determined that awarding 

plaintiff sole legal and residential custody was in C.L.'s best interests. The 

record amply supports the court's findings and legal conclusion. Requiring the 

parties to make joint decisions would be detrimental to C.L., especially given 

his significant psychological and medical conditions. Further, plaintiff's final 

restraining order against defendant adds to the impracticability of joint legal 

custody. 

Additionally, plaintiff has had actual physical custody of C.L. since the 

parties separated and C.L. has always lived in New Jersey. Defendant works 

and lives in Florida most of the year while C.L.'s treatment team is based in 

New Jersey. Moreover, defendant has not adequately addressed his own 
21 A-4423-18T3

mental health issues. 7 These considerations weighed heavily in favor of 

awarding plaintiff sole legal and residential custody.

Defendant further argues that a plenary hearing with testimony of the 

parties and expert witnesses was required before effectively terminating his 

right to parenting time, citing Wilke v. Culp, 196 N.J. Super. 487 (App. Div. 

1984). He also contends that a guardian ad litem should have been appointed 

for C.L. due to his special needs. We disagree. 

This case is readily distinguishable from Wilke. First, defendant's right 

to parenting time was not terminated. As we discuss infra, he was awarded 

appropriate parenting time under the circumstances. Second, defendant did not 

name or call a proposed expert witness or produce an expert report during 

discovery. Third, although the divorce proceeded by way of default, defendant 

was permitted to cross-examine plaintiff, call his mother to testify on his 

behalf, and then testify himself regarding custody. The combined testimony 

aided the court in finding that "there is no communication between the 

7

In its ruling, the court noted that defendant "acknowledged during his 

testimony that he understands that he is required to obtain the previously 

ordered psychiatric and psychological evaluations and comply with all 

recommendations before a court would entertain a request for any change in 

custody and parenting time." 
22 A-4423-18T3

parents," which is a permitted justification for awarding sole legal and 

residential custody to plaintiff. 

In a case involving custody or parenting time, the court "may" appoint a 

guardian ad litem "to represent the best interests of the child or children if the

circumstances warrant such an appointment." Rule 5:8B(a). The court may 

also appoint an independent expert "in its discretion" when the "disposition of 

an issues will be assisted by expert opinion." Rule 5:3-3(a). We review such 

decisions for an abuse of discretion. 

The trial court found both parties are "fit parents. However, at present, 

[d]efendant's parenting time has been progressively limited due to his inability 

to abide by court orders and to control his emotions." Neither party called a 

psychiatrist or psychologist as a witness. Defendant acknowledges that C.L. is 

autistic and has "special behavioral and educational needs stemming from his 

numerous diagnos[e]s." C.L.'s medical diagnoses were never in dispute. Thus, 

neither expert testimony nor a guardian ad litem for C.L. was required. We 

discern no abuse of discretion. 

The court awarded defendant the following parenting time: 

Defendant shall be permitted to have audio-only calls 

with [C.L.] on Tuesdays and Thursdays from 7:00 

p.m. to 7:15 p.m. Defendant shall initiate the call 

between these times. Plaintiff shall have the 
23 A-4423-18T3

obligation to provide the phone to [C.L.] when the call 

is received. If [C.L.] terminates the call without 

speaking to [d]efendant, [he] may initiate a second 

call to try and speak with the child. If [C.L.] 

terminates the second call, there shall be no further 

calls that evening. Defendant may not disparage or 

even mention [p]laintiff during his parenting time with 

the child. . . .

In so ruling, the court nevertheless indicated that if defendant 

subsequently complied with court orders, completed previously ordered 

psychiatric evaluation and recommended treatment, and controlled his 

emotions, it would consider an enhancement of defendant's parenting time. 

A trial court's decision concerning custody or parenting time is reviewed 

for abuse of discretion. See, e.g., Pascale, 140 N.J. at 611. Defendant views 

the telephonic parenting time as "punishment . . . for his failure to abide by 

court orders." We disagree. 

During many of the earlier FaceTime calls, defendant repeatedly 

communicated directly with plaintiff, despite the restraining orders, and 

disparaged her directly to C.L. Moreover, plaintiff testified that during the 

FaceTime sessions, C.L. "routinely throws a temper tantrum, destroys or 

attempts to destroy property, including the iPad device he" used to 

communicate with defendant, "attacks [her], screams, runs away, [and] 

otherwise engages in obstreperous behavior." 
24 A-4423-18T3

In addition, defendant had been ordered since December 2015 to 

undergo a psychiatric evaluation and never fully complied. The aim of the 

evaluation was twofold: to alleviate the stress of the FaceTime calls and allow 

defendant to seek treatment for his self-described "longstanding psychiatric 

issues." Moreover, the court held that if the telephone calls continued 

successfully for at least eight weeks, defendant could apply to have the 

FaceTime parenting time reinstated even while the evaluations were underway. 

We discern no abuse of discretion in limiting the telephonic calls to C.L. 

C.

Defendant argues the trial court erred in calculating child support 

because it did not account for his expenses in providing health insurance for 

C.L. In his reply brief, defendant clarified that: "At the time of trial the 

[d]efendant was unemployed and had secured health insurance for [C.L.] via a 

very expensive COBRA plan. Health insurance is now available for [C.L.] 

through the [d]efendant's employment and he has obtained same for him 

pursuant to his obligation under the Child Support guidelines." 

During the default hearing, defendant requested that his obligation to 

provide health insurance for C.L. be eliminated. Plaintiff agreed. The trial 

court ruled there would "be no credits on either side for medical insurance as 
25 A-4423-18T3

the child is presently covered by NJ Family Care at no cost to [p]laintiff. 

Should this change at some time in the future the issue of payment will need to 

be readdressed by the [c]ourt." The court noted the parties agreed this health 

insurance arrangement should continue for as long as permitted. We discern 

no abuse of discretion. 

D.

Defendant contends plaintiff removed several of his Rolex watches from 

the marital residence. He argues the trial court erred by failing to consider 

receipts for the watches that demonstrated their value. We are unpersuaded. 

During cross-examination, plaintiff testified that defendant owned 

several Rolex watches and that when she vacated the marital home, in January 

2015, she did not know exactly where they were. She suspected they were still 

in a safe kept in the home that both parties had the combination to. Plaintiff 

explained that after she left, she did not regain "dominion and control" of the 

home until October 2015. During that period, she "never saw the watches" and 

did not provide anyone else with the code to the safe. 

On direct-examination, defendant testified that he kept four Rolexes, 

other watches, important papers, and jewelry in the safe in the master closet. 

He verified that only he and plaintiff had access to the safe. Defendant 
26 A-4423-18T3

explained that he last opened the safe in September 2015 and the watches were

still inside. However, sometime after October he checked again and 

discovered that "the safe was empty." 

The trial court determined that defendant claimed that items that 

belonged to him were missing from the marital home but "provid[ed] nothing 

of substance in that regard other than the invoices for some watches that he 

purchased. Defendant requested $20,000 in exchange for the 'missing' 

property." The court found "[p]laintiff vacated the marital home in January 

2015 and never returned to live there. Defendant utilized the home whenever 

he was in the area." The home was sold in November 2016. "Defendant had 

ample time to remove his possessions prior to the sale." The court concluded 

there was insufficient evidence "regarding the 'missing' property" and 

"insufficient evidence that the watches were in the marital home at the time it 

was sold. It was just as likely that these items were removed by [d]efendant 

during his last stay at the home." 

"We ordinarily defer to the factual findings of the trial court [based upon 

evidence adduced at a hearing,] because it has the opportunity to make firsthand credibility judgments about the witnesses who appear on the stand [and]

it has a 'feel of the case' that can never be realized by a review of the cold 
27 A-4423-18T3

record." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) 

(quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293 (2007)). 

Defendant presented no direct evidence of theft or conversion by 

plaintiff. Defendant had the opportunity to remove the watches himself. We 

discern no error by the trial court. It did not impermissibly ignore evidence of 

the purchase of the watches. Indeed, plaintiff did not contest that defendant 

owned several Rolex watches. 

Additionally, defendant argues: (1) the "court failed to consider that 

during the marriage that the majority of the credit card spending was done on 

credit cards in the [d]efendant's name"; (2) "he was left with the repossession 

debt for the parties [2010] BMW 528i [(5-series)] for which he was ordered to 

pay the [p]laintiff $5,000.00"8; and (3) "the [c]ourt did not articulate a reason 

for the unequal allocation of the debt." 

Under equitable distribution, the statutory factors enumerated in 

N.J.S.A. 2A:34-23.1, "used in concert with the facts of each case," afford

"broad discretion" to the trial judge. Steneken v. Steneken, 367 N.J. Super. 

8

 The parties owned a 2007 BMW 3-series and the 2010 5-series automobiles. 

In his brief, defendant appears to conflate the cars. Although the 5-series was 

repossessed, defendant testified that he still owed $16,000 for that car, not 

$5,000. The judgment awarded plaintiff a $5,000 credit for her share of the 3 

series due to defendant selling it and retaining the proceeds. The judgment 

does not specifically discuss the 5 series loan balance. 
28 A-4423-18T3

427, 434-35 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). As a 

result, "[w]here the issue on appeal concerns which assets are available for 

distribution or the valuation of those assets, it is apparent that the standard of 

review is whether the trial judge's findings are supported by adequate credible 

evidence in the record." Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-

44 (App. Div. 1978). Similarly, where the issue involves the manner in which 

the trial court allocated the marital assets, we review the trial court's 

determination under an abuse of discretion standard. Id. at 444.

The trial judge applied the equitable distribution factors enumerated in 

N.J.S.A. 2A:34-23.1 and determined:

Plaintiff proposes that she will retain her present 

credit card balances involving a Chase Credit Card 

and a Citi card in a total amount of $20,636.00. 

Plaintiff asserts that this debt is marital in nature as it 

was incurred for the benefit of the child or for counsel 

fees. Plaintiff will accept this debt if she is awarded 

an additional $50,000.00 in counsel fees. Plaintiff 

also proposes that [d]efendant be entirely responsible 

for any credit card debt in his name, including but not 

limited to American Express and Velocity. Plaintiff 

requests that she be indemnified and held harmless as 

[d]efendant has not provided a complete accounting of 

his credit card debts.

Plaintiff also asserts that she will retain 

responsibility for a Home Equity Line of Credit taken 

on her parent's home, ostensibly to pay for legal fees 
29 A-4423-18T3

and costs of litigation in the amount of approximately 

$37,000.00.

Defendant agrees with all of the proposals of 

[p]laintiff provided that the additional $50,000.00 in 

contribution towards [p]laintiff's legal fees is not 

awarded.

Ultimately, the court sided with defendant when it: (1) ordered each 

party to "retain all credit card debt in their own names"; (2) ordered plaintiff to 

"retain responsibility for the home equity loan"; (3) denied plaintiff's request 

for an additional $50,000 in counsel fees; and (4) ordered "that any other debt 

in either party's name not specifically enunciated herein, shall be the sole 

responsibility of that party." Defendant's argument on appeal amounts to 

invited error.

"The doctrine of invited error operates to bar a disappointed litigant 

from arguing on appeal that an adverse decision below was the product of 

error, when that party urged the lower court to adopt the proposition now 

alleged to be error." Brett v. Great Am. Recreation. Inc., 144 N.J. 479, 503 

(1996). Defendant acknowledged that he would accept plaintiff's proposal 

excluding the $50,000 she desired in counsel fees. The court agreed, stating it 

was disinclined to award an additional $50,000 in counsel fees to plaintiff. 
30 A-4423-18T3

Because defendant acquiesced to this proposal at the trial level, he cannot 

claim it was error on appeal. 

As to the BMWs, both parties' Case Information Statements listed the 

value of the 3-series at $10,000. At some point prior to the default hearing, 

defendant sold it for $1200 and "refused to provide [plaintiff with] the name of 

the individual who purchased" the car "or even the date of sale." Accordingly, 

plaintiff proposed that she "receive a credit in the amount of $5,000" against 

defendant's share of her retirement accounts. Defendant relied on a CARFAX 

report that indicated the vehicle was a total loss due to "non-collision damage"

and was declared a "total loss" by the insurer. Defendant claimed that the 

vehicle was a "total loss" because of "damage to the wiring harness." 

Defendant confirmed he sold the car for $1200 to a stranger after visiting a car 

dealership that would not purchase it. When the court asked how he found the 

buyer, defendant replied "the car guy that delivers the cars [at a dealership] 

said, 'I know someone that would want the car.'" 

Ultimately, the court found defendant provided insufficient information 

provided as to the whereabouts of the 3-series, found his explanation for what 

happened to it unconvincing, and awarded plaintiff a resulting $5000 credit 
31 A-4423-18T3

towards defendant's share of plaintiff's retirement accounts. These findings 

and determination are supported by the record. We discern no error. 

Defendant filed written opposition to the proposed FJOD. Although 

defendant opposed awarding plaintiff any credit related to the 3-series, he 

stated he had "[n]o objection to both parties being solely liable for debts in 

their name." The 5-series automobile loan was in defendant's name. The trial 

court did not separately address defendant's liability for the 5-series loan. 

Instead, the FJOD states: "Any other debt in either party's name not 

specifically enunciated herein, shall be the sole responsibility of that party who 

shall indemnify and hold harmless the other party." Defendant cannot now 

complain that he should not be solely responsible for this debt.

E.

Defendant argues the trial court erred in awarding plaintiff $25,000 in 

counsel fees because it "did not satisfy the requirements outlined in" N.J.S.A. 

2A:34-23, Rule 5:3-5(c), and Rule 4:42-9(b)- to (d). We agree that the trial

court did not adequately set forth its findings of fact and conclusions of law. 

"A lawyer's fee must be reasonable." Giarusso v. Giarusso, 455 N.J. 

Super. 42, 50 (App. Div. 2018) (quoting Rosenberg v. Rosenberg, 286 N.J. 

Super. 58, 69 (App. Div. 1995)). Determining the reasonableness of the fee 
32 A-4423-18T3

"involves determining the number of hours reasonably expended multiplied by 

a reasonable hourly rate." Id. at 51 (citing Rendine v. Pantzer, 141 N.J. 292, 

334-35 (1995)). The factors to be considered in determining the 

reasonableness of an attorney's fee include: "the time and labor required, the 

novelty and difficulty of the questions involved, and the skill requisite to 

perform the legal service properly"; "the amount involved and the results 

obtained"; and "whether the fee is fixed or contingent." Ibid. (quoting RPC 

1.5(a)(1), (4), and (8)). "Compiling raw totals of hours spent, however, does 

not complete the inquiry. It does not follow that the amount of time actually

expended is the amount of time reasonably expended." Ibid. (quoting Rendine, 

141 N.J. at 334-35). 

An appellate court will not disturb a counsel fee award in a matrimonial 

case except "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) 

(quoting Rendine, 141 N.J. at 317). When awarding counsel fees, the judge 

should consider:

(1) the financial circumstances of the parties; (2) the 

ability of the parties to pay their own fees or to 

contribute to the fees of the other party; (3) the 

reasonableness and good faith of the positions 

advanced by the parties both during and prior to trial; 

(4) the extent of the fees incurred by both parties; (5) 
33 A-4423-18T3

any fees previously awarded; (6) the amount of fees 

previously paid to counsel by each party; (7) the 

results obtained; (8) the degree to which fees were 

incurred to enforce existing orders or to compel 

discovery; and (9) any other factor bearing on the 

fairness of an award.

[R. 5:3-5(c); see also Mani v. Mani, 183 N.J. 70, 94-

95 (2005); N.J.S.A. 2A:34-23 (providing that the 

judge "shall consider the factors set forth in the court 

rule on counsel fees, the financial circumstances of the 

parties, and the good or bad faith of either party").]

A trial judge's failure to consider the appropriate factors, make the required 

findings, and state its conclusions of law, constitutes a clear abuse of 

discretion. Saffos v. Avaya Inc., 419 N.J. Super. 244, 271 (App. Div. 2011); 

see also R. 1:7-4(a). 

Here, the court held that plaintiff's Fidelity IRA, valued at $77,412.66, 

was marital property and ruled that defendant was entitled to one-half of its 

value ($38,706.33). The court further held that defendant's 401(k) retirement 

account through Fidelity Investments in the amount of $25,106.56 was also 

marital property. The court then stated, "[i]t is also uncontroverted that 

[d]efendant liquidated this entire account during the course of the litigation. 

Thus, the marital coverture portion of this account available to [p]laintiff 

would be $12,553.28." 
34 A-4423-18T3

The court reduced defendant's share of plaintiff's IRA by $12,553.28, 

making his total $26,153.05 because "[p]laintiff was forced to incur additional 

counsel fees due to the behavior of [d]fendant. Accordingly, the [c]ourt will 

reduce this share by $25,000.00 towards counsel fees of [p]laintiff, thus 

leaving a balance of $1,153.05." It provided no further analysis for the 

$25,000 counsel fee award. In turn, the FJOD states "[p]laintiff shall receive a 

credit of $25,000 from [d]efendant's share of her retirement account as an 

additional contribution toward counsel fees." It also then noted "[t]here shall 

be no further adjustments for counsel fees previously incurred in this matter." 

The court did not determine the lodestar or analyze the Rule 5:3-5(c) and 

RPC 1.5(a) factors. Accordingly, we are unable to determine whether the 

$25,000 counsel fee award is reasonable under the applicable guidelines. 

"Trial judges are under a duty to make findings of fact and state reasons 

in support of their conclusions." Giarusso, 455 N.J. Super. at 53 (quoting 

Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996)); accord R. 1:7-4(a) 

(requiring trial courts to "find the facts and state its conclusions of law"). 

"Meaningful appellate review is inhibited unless the judge sets forth the 

reasons for his or her opinion." Ibid. (quoting Strahan, 402 N.J. Super. at 

310). 
35 A-4423-18T3

We vacate the counsel fee award and remand as the trial court failed to 

make the required findings and state its conclusions of law regarding the 

lodestar and application of the Rule 5:3-5(c) and RPC 1.5(a) factors. On 

remand, the judge shall make specific findings of fact and conclusions of law 

in compliance with Rule 1:7-4(a). We express no opinion as to the appropriate 

fee award in this matter. 

F.

Defendant's remaining arguments do not warrant further discussion in a 

written opinion. R. 2:11-3(e)(1)(E). 

In sum, we affirm the judgment except for the counsel fee award, which 

we vacate and remand for further proceedings consistent with this opinion. 

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

jurisdiction.