SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3782-19

JOAN EISINGER,

Plaintiff-Respondent,

v.

DOUGLAS HERMAN,

Defendant-Appellant.

_______________________

Argued February 1, 2022 – Decided April 4, 2022

Before Judges Hoffman, Whipple and Susswein.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, Docket 

No. FM-20-0523-14.

Bonnie C. Frost argued the cause for appellant 

(Einhorn, Barbarito, Frost & Botwinick, PC, attorneys; 

Bonnie C. Frost, Matheu D. Nunn, and Jessie M. Mills, 

on the briefs).

John E. Clancy argued the cause for respondent 

(Townsend, Tomaio & Newmark, LLC, attorneys; John 

E. Clancy, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant, Douglas Herman, appeals from a June 18, 2018 dual final 

judgment of divorce (JOD) and a April 30, 2020 order awarding plaintiff 

attorneys' fees and costs in the amount of $110,000 and denying defendant's 

request for attorney fees and costs. 

After trial, the court entered its decision divorcing the parties 

accompanied by a written statement of reasons. The JOD provides, in essence:

1. Commencing July 1, 2018 defendant shall pay 

limited duration alimony to plaintiff for ten years of 

$3,000 per month. 

2. Commencing July 1, 2018, defendant shall pay child 

support of $600 per month. 

3. Defendant shall maintain life insurance for $200,000 

designating the parties' son as beneficiary with plaintiff 

as trustee for as long as the child is unemancipated; 

plaintiff shall maintain life insurance in the amount of 

$100,000 designating the parties' son as beneficiary 

with defendant as trustee for as long as the child is 

unemancipated. 

4. Commencing July 1, 2018, each party shall be solely 

responsible for their own debts and credit card accounts 

held in their own names; however, defendant shall be 

solely responsible for the $170,000 loan from his 

parents and the debt shall not be deducted from the 

sales proceeds of the sale of the former marital 

residence. 

5. Defendant shall not receive a credit at closing of 

$80,000 for the paydown of the mortgage principal of 

the October 2, 2010 refinance. 
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6. Defendant's request for credits pursuant to Mallamo 

v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995),1is 

denied.

7. Defendant shall pay pendente lite arrears in the 

amount of $8,622.76 by July 1, 2018; defendant shall 

also pay any additional pendente lite arrears for the 

period from November 10, 2016 through June 20, 2018, 

by July 15, 2018. 

8. The marital portion of the defendant's NAF Pension 

and NAF 401(k) Account shall be divided equally.

9. Plaintiff shall retain her Vanguard Roth individual 

retirement account (IRA) and her Fidelity IRA free and 

clear from any claim from defendant; defendant 

previously liquidated his Vanguard Roth IRA with a 

value of $10,969 as of September 13, 2013 to satisfy 

the $10,000 advance for counsel fees to plaintiff in the 

Order dated September 12, 2014. 

10. The marital portion of the defendant's Vanguard 

Voyager Rollover IRA shall be divided equally. 

11. Defendant shall pay plaintiff $7,531.36, equaling 

one-half of the cash withdrawal that the defendant 

retained when he liquidated the Sony Music 

Entertainment, Inc. Employee Investment Fund and 

rolled over the remaining balance into the Vanguard 

Rollover IRA in 2010. 

12. The parties shall list the former marital residence 

for sale by July 1, 2018. 

13. Commencing July 1, 2018, plaintiff shall be 

responsible for the carrying costs associated with the 

marital residence and shall receive a credit for any 

principal paid down on the mortgage; the sales proceeds 

of the marital home shall be divided 65% plaintiff, 35% 

defendant. 

1

 The application of Mallamo credits refer to the modification of pendente lite 

support orders at the time final judgment is entered. Slutsky v. Slutsky, 451 N.J. 

Super. 332, 368 (App. Div. 2017).
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14. Parties shall make any repairs to the residence 

recommended by the realtor with defendant advancing 

the funds which shall be shared 35% by plaintiff, 65% 

by defendant and, with defendant being reimbursed 

from plaintiff's share of the sales proceeds. 

15. For the tax year 2018, defendant shall claim the 

mortgage interest and property taxes incurred from 

January 1, 2018 to June 30, 2018; commencing July 1, 

2018, plaintiff shall claim the mortgage interest and 

property taxes incurred until the residence is sold. 

16. The parties shall retain individual checking and/or 

savings accounts in their names, free and clear of any 

claim by the other. Defendant shall pay plaintiff 

$1,486, which is one half of the Provident Joint 

Checking account as of September 29, 2013. Defendant 

shall pay plaintiff $22,504, which is one half of the 

Provident Joint Savings account prior to defendant's 

withdrawal of $44,012.52 between June 10, 2013 and 

September 29, 2013. 

17. Defendant shall retain the Scottrade investments 

except for the following: 127 shares of Fifth and Pacific 

Companies and 250 shares of Oracle Corporation, 

which shall be distributed to the parties equally, inkind. 

18. Plaintiff shall retain the 2000 Toyota Camry valued 

at $1,084. Defendant shall maintain the 2003 BMW 

gifted to him by his parents and the 2014 Hyundai 

which was purchased on March 15, 2014. 

19. Defendant shall pay plaintiff one half of the tradein value for the 2012 Hyundai Genesis, which was 

$18,000, less defendant's one-half share of the Toyota 

Camry value, totaling $8,458. 

20. Defendant shall pay plaintiff one half of 

$23,055.94, or $11,528, representing plaintiff's share of 

the marital funds defendant used to make repairs on the 

2003 BMW made between 2012 and 2015. 
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21. Defendant's Vanguard Voyager Select Brokerage 

(VVSB) account, which had a balance of $356,037.65 

as of September 30, 2013, shall be divided equally.

The court entered its decision on counsel fees twenty-two months later, 

on April 30, 2020, awarding legal fees to plaintiff of $110,000. This appeal 

followed. 

On appeal, defendant argues broadly that the court's decision was an abuse 

of discretion because every discretionary decision was made to his detriment. 

Specifically, he asserts error in the setting of alimony without a numerical 

quantification of the marital lifestyle and for an erroneous term; erroneous 

imputation of income to plaintiff; the inclusion of exempt assets and erroneous 

credits for automobiles and the marital residence under equitable distribution; 

erroneous pendente lite support; denial of Mallamo credits; and counsel fees.

We affirm the dual final JOD in part, reverse in part, and remand for further 

proceedings as directed below. 

Our review of a Family Part judge's factual findings is limited. Cesare v. 

Cesare, 154 N.J. 394, 411-12 (1998). Such findings "are binding on appeal when 

supported by adequate, substantial, credible evidence." Ibid. Appellate courts 

"accord particular deference to the judge's factfinding because of 'the family 
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courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 

N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare, 154 N.J. at 413). 

"Deference is especially appropriate 'when the evidence is largely 

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

(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "[A] 

trial judge who observes witnesses and listens to their testimony, develops 'a 

feel of the case' and is in the best position to 'make first-hand credibility 

judgments about the witnesses who appear on the stand.'" Slutsky, 451 N.J. 

Super. at 344 (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 

104 (2008)). We "review the trial court's legal conclusions de novo" and "do 

not pay special deference to its interpretation of the law." Thieme v. AucoinThieme, 227 N.J. 269, 283 (2016). 

Thus, the trial record informs our conclusions. The parties married on 

November 3, 1996, and have one unemancipated child, a son, who was attending 

college at the time of trial. 

Between 1988 and 1998, plaintiff worked as a Licensed Clinical Social 

Worker (LCSW) in New York City, earning approximately $36,000 per year, 

until she became pregnant with their son in 1998. Her LCSW license in New 

York is no longer active and she is not licensed in New Jersey. After their son 
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was born, the parties decided that she would be his primary caregiver while 

defendant supported them and took care of the maintenance of the house. 

Between 1998 and 2016, defendant worked at various companies, most 

recently, at Marine Corps Community Services in Quantico, Virginia, where he 

remained employed at the time of trial. Excluding 2010, during which he was 

unemployed for several months, his W-2 Medicare earnings averaged 

approximately $165,000 between 1998 and 2012 but varied from a low of 

$128,395 in 2004 to a high of $262,657 in 2000. Between 2012 and 2015, his 

W-2 Medicare earnings were as follows: $136,109 in 2012; $132,312 in 2013; 

$135,846 in 2014; and $144,286 in 2015. He also garnered approximately 

$7,000 per year in unearned income from investment dividends and annual 

distributions from two trusts established by his parents. 

From July 2000 until May 2010, the parties lived together in a 2,800-

square-foot, four-bedroom marital home in Berkeley Heights that they 

purchased for $600,000. It was then, after having been unemployed for almost 

a year, defendant moved to Virginia to work for the federal government in the 

information technology field as a manager of business systems for Marine Corps 

Community Services. Plaintiff remained in the home with their son, never 

moving to Virginia with defendant. When defendant returned to New Jersey to 
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visit their son on the weekends, the parties slept in the same bed in the marital 

home until spring or summer of 2013 when defendant started sleeping in the 

guest room or at his parents' apartment. 

In 2010, plaintiff began working as a self-employed psychic, healer and

"medical intuitive." She reports she channels departed ones and pets, clears 

spaces in person and remotely, works on people's auras, clears and aligns 

chakras, and works on karmic issues by going into past lives. She has numerous 

clients, with about 250 repeat clients that return to see her every few weeks or 

monthly, and she charges $90 per half-hour or $165 per hour with different rates 

for group events. 

On September 24, 2013, plaintiff filed a complaint for divorce alleging 

irreconcilable differences. Defendant answered the complaint and filed a 

counterclaim. On September 12, 2014, under a pendente lite order, the court 

required defendant to pay all of plaintiff's Schedule A and Schedule B expenses, 

plus 78% of her Schedule C expenses each month. It also ordered defendant to 

pay plaintiff $10,000 to enable her "to have continued legal representation." 

 On July 27, 2016, trial commenced and concluded on December 12, 2016. 

Plaintiff's witnesses were herself, her accounting expert Jeffrey Lieberman, 

CPA, and her employability expert Dr. Charles Kincaid. Defendant testified, as 
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well as Herbert Herman, defendant's father, and Donna Kolsky, his

employability expert.

It was clear that defendant handled the finances during the marriage. 

Defendant said that plaintiff knew "next to nothing" about the finances, other 

than the annual budget spreadsheets he shared with her. He described the marital 

lifestyle as a "comfortable," "upper-middle class lifestyle."

According to plaintiff, defendant "controlled every aspect of the finances" 

because "[t]hat was his forte" and she was comfortable with that arrangement. 

Although they had a joint checking account, she did not know what the marital 

expenses were at any point between 1997 and 2012, never saw any of the bills, 

and "had no idea what the marital standard of living was." Their credit cards, 

which she used, were in defendant's name only. Even after he moved to 

Virginia, defendant still handled the finances including the filing of their joint 

federal income tax returns for 2010, 2011, and 2012. 

During the marriage, the parties seldom traveled or vacationed. Plaintiff 

said that they dined out twice per month and had a housekeeper. Defendant 

described that they "were house poor" during the marriage and rarely dined out. 

He thought plaintiff bartered with the housekeeper and didn't have to pay her. 

He regularly contributed money to his 401(k), typically the maximum allowed, 
10 A-3782-19

and he testified that any other marital savings was used to repair or improve the 

marital home or to pay down the mortgage. 

The marital home was worth $725,000 per a recent appraisal and the 

mortgage balance was $280,000 as of May 2016. Plaintiff testified that 

defendant said his parents gave them $190,000 for a down payment as a gift, 

though defendant testified his parents loaned him the money and he listed the 

$190,000 as a loan on his 2016 case information statement (CIS). Defendant 

said that he reduced the loan balance to $170,000 in 2000 through a gift from 

his father. 

Defendant also testified that in 2010, he paid down the mortgage principal 

by $80,000 out of the parties' checking account. He "believe[d]" it was "gifted 

money" from his parents that he used, but he admitted that he "can't point to 

every record and every transaction to prove it" and did not "know the exact 

origin of all of the money." Plaintiff's personal liabilities included multiple 

loans from her parents totaling $76,700 to cover her legal fees. 

Plaintiff drove a 2000 Toyota Camry valued at $1,000. Defendant drove 

a 2003 BMW that his father gave him in September 2007, a 2012 Hyundai 

Genesis that he purchased during the marriage, and later a 2015 Hyundai 

Genesis that he purchased for $41,000 after he sold the 2012 Hyundai Genesis 
11 A-3782-19

for $18,000 without plaintiff's knowledge. Defendant asserts that he acquired 

the 2015 Hyundai Genesis from "exempt assets."

The parties had a joint checking account at Provident Bank, and defendant 

had a Provident Bank money market account in his name only that plaintiff did 

not know about until just before the divorce. After the divorce complaint was 

filed, plaintiff opened business and personal checking accounts with TD Bank 

and defendant opened checking and savings accounts with USAA Bank. 

Plaintiff had two IRAs valued at approximately $20,000. Defendant had 

a 401(k) valued at $71,034, which he claimed was acquired "post-separation,"

and an unvested pension which he again claimed was acquired "postseparation." They maintained two Uniform Transfers to Minors Act (UTMA) 

accounts for their son valued at approximately $92,000. 

 Other significant assets included:

A Scottrade investment account in defendant's name 

valued at over $300,000, most of which plaintiff 

conceded contained stocks exempt from equitable 

distribution;

A VVSB investment account in defendant's name 

valued at approximately $345,000 that defendant 

contends is exempt from equitable distribution as it 

contains cash gifts made to him from his parents that 

plaintiff did not know about; 
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A Vanguard Roth IRA in defendant's name valued at 

approximately $11,000; and

A Vanguard Rollover IRA in defendant's name valued 

at approximately $523,000, which defendant claims is 

partially exempt from equitable distribution as it 

contains both pre-marital and post-marital retirement 

funds from prior employment at Sony Music 

Entertainment, Scholastic, Liz Claiborne, and Grey 

Global Group. 

 

Plaintiff's CISs and federal income tax returns reflect a gross earned 

income as follows: $19,239 in 2012; $23,827 in 2013; $32,643 in 2014; and 

$28,479 in 2015. She is attempting to grow her client base such that she can 

work full-time, or at least thirty-five hours per week in this field. She formed 

relationships with two restaurants and a hair salon where she performs and hosts 

private parties. She has not considered returning to the social work or 

counseling fields because her current work is dichotomous with what a therapist 

does, and it would be unethical for her to practice in both areas at the same time. 

Plaintiff earned $12,730 between January and April 2016. Her business 

expenses, which were not significant, included web hosting, liability insurance, 

business cards, and other supplies. She testified that she works full-time, seven 

days per week and responds to inquiries from her clients via telephone and 

electronically. She testified, however, that her income differs each month. Her 

time is also spent growing her business by advertising her services on social 
13 A-3782-19

media and via email, networking, looking for locations to host events, 

responding to client phone calls and emails, appearing on radio shows and 

podcasts, publishing two books, and reading and researching to "stay on top of 

things and to grow as a practitioner." 

Plaintiff testified that the figures on her 2016 CIS reflect the joint marital 

lifestyle in effect before defendant moved to Virginia and that she reviewed the 

marital bills with a certified financial planner to estimate the expenses. The 

joint monthly Schedule A, B, and C expenses totaled $6,410. The joint monthly 

Schedule A expenses included a $1,368 mortgage payment, $1,294 in real estate 

taxes, $154 for homeowners' insurance, utilities including gas, electric, 

telephone, cable, internet, plus garbage removal, lawn care, pest control and 

other home maintenance and repairs totaling $3908. Plaintiff did not know the 

cost of the water and sewer expenses and had forgotten to include the association 

fee of approximately $350.

The joint monthly Schedule B expenses included automobile maintenance 

of $150. She testified that the parties did not have car payments until after 

defendant moved to Virginia, when he purchased a new vehicle, and that she did 

not know the cost of the automobile insurance. She drove a car with 168,000 

miles on it that needed repairs. She omitted the cost of fuel. The joint monthly 
14 A-3782-19

Schedule C expenses included food, prescriptions, toiletries, clothing, hair care, 

domestic help, medical co-pays, eyeglasses, daycare, entertainment, and gifts 

totaling $2,352. 

With respect to her current lifestyle, plaintiff estimated that her joint 

Schedule A, B, and C expenses had increased to $9,055. Her monthly Schedule 

A expenses decreased slightly, but her monthly Schedule B expenses increased 

substantially to $760 due to an anticipated $500 leased vehicle payment to 

replace her old vehicle, and her payment of fuel and insurance costs. Her 

monthly Schedule C expenses nearly doubled to $4,469 due to allotments for 

counseling and pre-college expenses for their son, medical insurance, club dues 

and memberships, vacations, savings, and life insurance. She included a savings 

component of $850 per month but testified that she "never knew what the money 

situation was during the marriage." 

Defendant's 2016 CIS states that his gross earned income in 2015 was 

$120,286. He also garnered unearned income in 2015 totaling $25,431, which 

included dividend income from assets gifted to him by his father, as well as trust 

income from two trusts arranged by his parents. His average gross weekly 

earned income in 2016 was $2805 and, through May 14, 2016, he had earned 

$58,046. For 2016, his annual salary was $145,860, plus bonuses. 
15 A-3782-19

Defendant estimated the joint monthly marital lifestyle expenses at 

$10,612, about $4,200 higher than plaintiff's estimate, as his estimate included 

shelter expenses for both the marital home and his apartment in Virginia. The 

joint monthly Schedule A expenses included his $1,502 monthly rent payment 

in Virginia as well as the $1,368 mortgage payment, utilities for both residences, 

real estate taxes, and maintenance costs totaling $6,207. The joint monthly 

Schedule B expenses included auto insurance payments for three vehicles, 

maintenance, fuel and oil costs, and other commuting expenses totaling $1,226. 

The joint monthly Schedule C expenses included food, clothing, toiletries, 

medical care, entertainment, and $400 for children's lessons totaling $3,179. 

With respect to his current lifestyle, defendant's Schedule A expenses 

increased while his Schedule B and C expenses decreased, for a total of $8,571 

– about $2,000 less than the joint monthly marital lifestyle. His Schedule A 

expenses included an increased rent payment of $1,933, reflecting the difference 

in rent between a one-bedroom apartment and a two-bedroom apartment, plus 

the existing mortgage payment for a total of $6,524. His Schedule B expenses 

decreased, presumably because he was no longer paying for plaintiff's auto 

insurance, for a total of $652. His Schedule C expenses decreased due to less 

money spent on food, medical expenses, and entertainment, for a total of $1,395. 
16 A-3782-19

Alimony and the Marital Lifestyle

Defendant contends that the court abused its discretion with respect to the 

alimony award in that it: (1) did not make its own quantification of the marital 

lifestyle; (2) failed to assess plaintiff's actual earning capacity as a social worker 

when it imputed income of $42,000 per year to her as a psychic, healer and 

channeler; and (3) failed to consider that the parties' marriage "terminated" in 

May 2010 when defendant moved to Virginia and plaintiff refused to relocate 

with him. 

"The award of spousal support is broadly discretionary." Steneken v.

Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in 

part, 183 N.J. 290 (2005). The court may order alimony "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. "[A]limony is neither a punishment for the payor nor a 

reward for the payee." Mani v. Mani, 183 N.J. 70, 80 (2005). "The basic 

purpose of alimony is the continuation of the standard of living enjoyed by the 

parties prior to their separation." Innes v. Innes, 117 N.J. 496, 503 (1990). 

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

achieving a lifestyle that is reasonably comparable to the one enjoyed while 
17 A-3782-19

living with the supporting spouse during the marriage." Crews v. Crews, 164 

N.J. 11, 16 (2000). 

Alimony awards are "governed by distinct, objective standards defined by 

the Legislature in N.J.S.A. 2A:34-23(b)." Gnall v. Gnall, 222 N.J. 414, 429 

(2015). The court must consider the following statutory factors, with "[n]o 

factor . . . elevated in importance over any other factor unless the court finds 

otherwise":

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the 

parties;

(4) The standard of living established in the marriage 

or civil union and the likelihood that each party can 

maintain a reasonably comparable standard of living, 

with neither party having a greater entitlement to that 

standard of living than the other;

(5) The earning capacities, educational levels, 

vocational skills, and employability of the parties;

(6) The length of absence from the job market of the 

party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire 

sufficient education or training to enable the party 

seeking maintenance to find appropriate employment, 
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the availability of the training and employment, and the 

opportunity for future acquisitions of capital assets and 

income;

(9) The history of the financial or non-financial 

contributions to the marriage or civil union by each 

party including contributions to the care and education 

of the children and interruption of personal careers or 

educational opportunities;

(10) The equitable distribution of property ordered and 

any payouts on equitable distribution, directly or 

indirectly, out of current income, to the extent this 

consideration is reasonable, just and fair;

(11) The income available to either party through 

investment of any assets held by that party;

(12) The tax treatment and consequences to both parties 

of any alimony award, including the designation of all 

or a portion of the payment as a non-taxable payment;

(13) The nature, amount, and length of pendente lite 

support paid, if any; and

(14) Any other factors which the court may deem 

relevant.

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

The court must "make specific findings on the evidence about all of the 

statutory factors" listed above. N.J.S.A. 2A:34-23(c). "[F]ailure to consider all 

of the controlling legal principles requires a remand." Boardman v. Boardman, 

314 N.J. Super. 340, 345 (App. Div. 1998). 
19 A-3782-19

In its statement of reasons, the court addressed each of the requisite 

statutory factors. Because defendant only challenges the adequacy of the court's 

findings with respect to factor (4), the standard of living established during the 

marriage, and factor (5), as it relates to plaintiff's earning capacity and 

employability, we focus on those two aspects of the court's decision herein. 

Marital Lifestyle

On statutory factor (4), the court's findings centered around the parties' 

2016 CISs and, to a lesser extent, their testimony pertaining to the marital 

lifestyle. The court found that while plaintiff asserted in her CIS that "[t]he total 

monthly marital lifestyle was $6,410.00, or $76,920.00 a year, exclusive of car 

payments, repairs required for the sale of the residence and significant savings 

accumulated by the parties," defendant asserted in his CIS that "[t]he total 

monthly marital lifestyle was $10,612.00, or $127,344.00 a year, exclusive of 

various personal expenses, repairs required for the sale of the residence and 

significant savings and investments accumulated by [him]."

Without numerically quantifying what it determined the marital lifestyle 

to be, the court then examined the parties' proposed post-divorce budgets as 

asserted in each CIS. It found that plaintiff "claim[ed] her post-divorce budget 

is $9,055.00 a month, or $108,660.00 a year," but that said budget was "not 
20 A-3782-19

comparable to the moderate marital lifestyle in light of her testimony regarding 

the family's regular expenses." It concluded that her "revised post-divorce 

budget" was "$5,995.00 a month, or $71,940.00 a year, which is $415.00 a 

month less than the marital lifestyle [asserted in her CIS]."

In particular, the court determined that it was unlikely that, after the sale 

of the marital residence, plaintiff "will incur shelter expenses of $3,826.00 a 

month" and reduced her "reasonable Schedule A expenses for rent, insurance, 

utilities, water and sewer, maintenance, telephone, cable and internet" to $3,000 

per month. It reduced her monthly Schedule B expenses from $760 to $560 

upon concluding that a reasonable expense for a new automobile was $300 per 

month and not $500 per month. It reduced her monthly Schedule C expenses 

from $4,469 to $2,435 upon finding that most expenses listed were "subject to 

reduction or deletion" as they were "no longer applicable or appear inflated."

As to defendant's post-divorce budget, which he asserted to be "$8,571.00 

a month, or $102,852.00 a year," the court found that it was "not reflective of 

the frugal lifestyle he described during the trial" and that "numerous expenses . 

. . can be deleted, or modified, including the costs associated with the residence, 

auto insurance, registration and license, vehicle maintenance, fuel and oil, 

commuting expenses, child's clothing and child's lessons." Thus, the court 
21 A-3782-19

concluded that defendant's "reasonable post-divorce lifestyle is $4,300.00 a 

month, or $51,600.00 a year."

Defendant contends that the trial court erred when it set an alimony award 

without having numerically quantified the marital lifestyle. This contention has 

merit, as "[a]n alimony award that lacks consideration of the factors set forth in 

N.J.S.A. 2A:34-23(b) is inadequate, and one finding that must be made is the 

standard of living established in the marriage." Crews, 164 N.J. at 26 (citing 

N.J.S.A. 2A:34-23(b)(4)). 

"[I]n determining the marital standard, the trial court establishes the 

amount the parties needed during the marriage to maintain their lifestyle." 

Weishaus v. Weishaus, 180 N.J. 131, 145 (2004); accord S.W. v. G.M., 462 N.J. 

Super. 522, 532 (App. Div. 2020) ("[A] finding of marital lifestyle must be made 

by explaining the characteristics of the lifestyle and quantifying it."). "[A] trial 

judge may calculate the marital lifestyle utilizing the testimony, the CISs 

required by Rule 5:5-2, expert analysis, if it is available, and other evidence in 

the record." Ibid. 

"The judge is free to accept or reject any portion of the marital lifestyle 

presented by a party or an expert, or calculate the lifestyle utilizing any 

combination of the presentations." Ibid. "[O]nce a finding is made concerning 
22 A-3782-19

the standard of living enjoyed by the parties during the marriage, the court 

should review the adequacy and reasonableness of the support award against this 

finding." Crews, 164 N.J. at 26. 

In this case, the court failed to "establish[] the amount the parties needed 

during the marriage to maintain their lifestyle." Weishaus, 180 N.J. at 145. Its 

statement of reasons does not contain a numeric finding as to what the marital 

lifestyle was. It somewhat inconsistently described the marital lifestyle as 

"moderate" based upon plaintiff's testimony and "frugal" based upon defendant's 

testimony. It found that plaintiff's 2016 CIS estimated the marital lifestyle at 

$6,410 per month, and that defendant's 2016 CIS estimated the marital lifestyle 

at $10,612 per month. But it never resolved the $4,000 discrepancy between the 

two figures. 

Although the court reviewed each party's 2016 CIS and reduced their 

current lifestyle budgets prior to awarding alimony, those calculations should 

have been undertaken in relation to the court's determination of what the marital 

lifestyle was. Instead, the court reduced plaintiff's current lifestyle budget in 

relation to her marital lifestyle estimate of $6,410 as shown on her 2016 CIS and 

reduced defendant's current lifestyle budget in relation to his marital lifestyle 

estimate of $10,612 as shown on his 2016 CIS. This approach is contrary to 
23 A-3782-19

well-established law, which emphasizes that establishment of the marital 

lifestyle is "the touchstone" for the initial alimony award. Crews, 164 N.J. at 

16. For these reasons, we agree that the court abused its discretion in calculating 

the initial alimony award and remand to address the issue. 

Marriage Termination Date

The court deemed the date that plaintiff filed the divorce complaint, 

September 24, 2013, as the date of termination of the parties' sixteen-year 

marriage. "[A] marriage is deemed to end on the day a valid complaint for 

divorce is filed that commences a proceeding culminating in a final judgment of 

divorce. Mere physical separation of the parties . . . will not be deemed to 

terminate a marriage." Portner v. Portner, 93 N.J. 215, 225 (1983); accord Elkin 

v. Sabo, 310 N.J. Super. 462, 472 (App. Div. 1998). 

Thus, defendant's contention that the marriage ended in May 2010 when 

he moved to Virginia and plaintiff refused to relocate with him is contrary to 

well-established law. Similarly, his contention that the court should have 

considered him to have been paying pendente lite support since May 2010 when 

awarding alimony in connection with N.J.S.A. 2A:34-23(b)(13) is neither 

supported by facts nor law.
24 A-3782-19

Mallamo Adjustment

Also, under the umbrella of the alimony, defendant contends that the court 

abused its discretion when it denied his request for a Mallamo adjustment for 

overpayment of pendente lite support and failed to consider his "paydown on 

the principal of the mortgage on the marital home" between 2010 and 2018, 

totaling $134,442. In particular, he asserts that because the court ultimately 

awarded plaintiff $3,000 per month in alimony and $600 per month in child 

support, he is entitled to a Mallamo adjustment because he paid pendente lite 

support totaling "between $5,600 and $5,900 per month."

"[P]endente lite support orders are subject to modification prior to entry 

to final judgment . . . , and at the time of entry of final judgment. . . ." Mallamo, 

280 N.J. Super. at 12 (citations omitted). "In many instances the motion judge" 

hearing a pendente lite application "is presented reams of conflicting and, at 

times, incomplete information concerning the income, assets and lifestyles of 

the litigants." Id. at 16. Often "a judge will not receive a reasonably complete 

picture of the financial status of the parties until a full trial is conducted." Ibid. 

In analyzing a request for a Mallamo adjustment, the court must consider 

whether the amount of pendente lite support paid "was consistent with the 

marital lifestyle." Slutsky, 451 N.J. Super. at 369. "Any changes in the initial 
25 A-3782-19

orders rest with the trial judge's discretion" and are therefore reviewed under an 

abuse of discretion standard. Id. at 368. 

The court denied defendant's request for a Mallamo adjustment. It 

reasoned that, pursuant to a September 12, 2014, pendente lite order, defendant 

was responsible for payment of all of plaintiff's Schedule A and B expenses, 

plus 78% of her Schedule C expenses during the pendente lite period. It found 

that "[t]he parties agreed that the allocated lifestyle expenses paid by [d]efendant 

were between $5,600.00 and $5,900.00 a month." It further found that 

"[d]efendant did not pay child support and [p]laintiff was responsible for 22% 

of Schedule C expenses." Without reference to any numerical findings 

pertaining to the marital lifestyle, it concluded that "[t]he [d]efendant did not 

overpay pendente lite support in this matter."

However, Mallamo adjustments are necessarily calculated in relation to, 

and dependent upon, the court's final determination of the marital lifestyle. 

Slutsky, 451 N.J. Super. at 368-69. Here, the court ruled upon the Mallamo

issue without having first numerically quantified the marital lifestyle. We

remand this issue for reconsideration following the court's entry of the necessary 

numerical marital lifestyle finding. 
26 A-3782-19

Imputation of Income to Plaintiff

On statutory factor (5), the court thoroughly considered plaintiff's 

educational background, plaintiff's employment history and earnings as well as 

her status after her son was born in 1998.

The court thoroughly evaluated and considered expert testimony from 

plaintiff's expert, Kincaid, and defendant's expert, Kolsky, with respect to 

plaintiff's employability. Based upon Kincaid's testimony, the court found that 

plaintiff had "various vocational barriers to returning to her former career," 

which included lack of employment as a social worker for almost twenty years, 

lack of the requisite license, and "limited skills related to technology and 

virtually no computer skills." It determined that "the import of [Kincaid's] 

testimony is that [p]laintiff could not just restart her career as a social worker 

by sending in a check for $196.00 and getting a job." It credited his opinion that 

plaintiff's "income would steadily increase from the $30,000.00 range if she 

remained employed in her current capacity" and that, if she "re-entered the labor 

market in the Berkeley Heights area as a social worker," she would earn an 

"entry level salary . . . between $39,053.00 and $46,371." 

The court also considered Kolsky's testimony "that [p]laintiff could 

immediately return to work in New York as a social worker after paying $196.00 
27 A-3782-19

to restore her professional license," that she "would then be eligible for 

employment . . . at the annual salaries in 2014 of $54,558.00 to $67,000.00" or 

"on a per diem basis at $55.00 per hour" and "could earn $75,982.00 within two 

to three years" or "in five to seven years, . . . $145,600.00 per year." It noted 

that Kolsky "based her opinion on the fact that [p]laintiff was [bilingual] in 

Spanish, although this was never confirmed at trial." 

Ultimately, the court rejected Kolsky's opinion that plaintiff "only needs 

to send in a check for $196.00 and [then] she can resume her former career as a 

social worker earning $67,000.00 per year." The court found that plaintiff 

"would be required to pursue continuing education and training before she could 

return to work as a social worker" and that, by comparison, if she "continues 

with her current occupation as a psychic, healer and channeler, she does not need 

to update her educational requirements or undergo additional training." It 

further found that while plaintiff was self-employed "in a non-traditional 

business . . . there is a potential for growth and success as pointed out by 

[p]laintiff's expert." It also found that her "absence from her career as a social 

worker, her age, her lack of continuing education and her current selfemployment makes [p]laintiff's return to the field of social work unreasonable 
28 A-3782-19

and unrealistic" and that these factors did "not support her return to her prior 

occupation."

In the end, the court concluded that plaintiff "is able to support herself in 

her current capacity as a psychic, healer and channeler" and did not find "that 

there is another alternative presently which would generate income for 

[p]laintiff and allow her to maintain a moderate lifestyle, in conjunction with 

the alimony award and distribution of marital assets." It imputed income to 

plaintiff of $42,000 per year "based on her historical income between 2014 and 

2016, along with the anticipated growth of her business." 

"The court may impute income based on the . . . former income at that 

person's usual or former occupation or the average earnings for that occupation 

as reported by the New Jersey Department of Labor." Elrom v. Elrom, 439 N.J. 

Super. 424 (App. Div. 2015). "[I]f potential earnings cannot be determined," 

the court may "impute income based on the [party's] most recent wage or benefit 

record." Ibid. "Imputation may also be justified when examining income 

reported by self-employed obligors, who control the means and the method of 

their earnings." Id. at 436. 

"A trial court is free to accept or reject the testimony of either side's 

expert, and need not adopt the opinion of either expert in its entirety." Brown 
29 A-3782-19

v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002). "A trial judge's decision 

to impute income of a specified amount will not be overturned unless the 

underlying findings are inconsistent with or unsupported by competent 

evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004). 

"Credibility findings are given substantial weight and deference." Id. at 479. 

Here, the court's decision to impute annual income of $42,000 to plaintiff 

is supported by competent evidence, namely, Kincaid's expert report and opinion 

which the court found credible. 

We also reject defendant's contention that the court "imputed income 

based on a net opinion" from Kincaid. "N.J.R.E. 703 sets forth the criteria for 

determining whether an expert opinion may be admitted into evidence and 

requires that the expert conclusions be founded in 'facts or data' and that those 

facts be 'reasonably relied upon by [other] experts in the field.'" Harte v. Hand, 

433 N.J. Super. 457, 464 (App. Div. 2013) (quoting N.J.R.E. 703) (alteration in 

original). Kincaid's opinion is not a net opinion because it is supported by facts 

and is not simply conclusory. Moreover, we see no reason to require the court 

to determine that plaintiff must work in an occupation in which she is utilizing 

her advanced degree — and impute income to her on that basis — where 

demonstrated self-employment that does not require use of her advanced degree 
30 A-3782-19

is a viable option that will allow her to earn a comparable income. The court 

must "consider" and "realistically appraise" the party's educational background, 

work experience, employment status, earning capacity, and job opportunities in 

the region when determining how much income, if any, to impute. See Caplan 

v. Caplan, 182 N.J. 250, 268-69 (2005); Elrom, 439 N.J. Super. at 435; Storey, 

373 N.J. Super. at 474. The court did so here. 

We conclude that the court's imputation of income to plaintiff in the 

amount of $42,000 annually is supported by the record and should not be 

disturbed on appeal. Storey, 373 N.J. at 474-75. 

Equitable Distribution

Defendant contests the court's inclusion of two assets, the VVSB account 

and 250 shares of Oracle stock, as assets subject to equitable distribution. He 

also contests the court's allocation of other marital assets, including the 2012 

Hyundai; the proceeds from the sale of the marital home; the Provident Bank 

money market account; the BMW repairs; and the Sony Music Entertainment 

401(k) cash payment. 

During divorce proceedings, the trial court is tasked with "effectuat[ing] 

an equitable distribution of the property, both real and personal, which was 

legally and beneficially acquired . . . during the marriage." N.J.S.A. 2A:34-
31 A-3782-19

23(h). The governing statute "reflects a public policy that is 'at least in part an 

acknowledgment "that marriage is a shared enterprise, a joint undertaking, that 

in many ways is akin to a partnership."'" Thieme, 227 N.J. at 284. 

"The goal of equitable distribution is to effect a fair and just division of 

marital assets." Steneken v. Steneken, 183 N.J. 290, 299 (2005). The trial court 

must: (1) decide what specific property is eligible for equitable distribution; (2) 

determine its value; and (3) decide how to equitably distribute it between the 

parties. Rothman v. Rothman, 65 N.J. 219, 232 (1974). In terms of eligibility, 

the governing statute exempts gifts from equitable distribution, providing that 

"all such property, real, personal or otherwise, legally or beneficially acquired 

during the marriage . . . by either party by way of gift, devise, or intestate 

succession shall not be subject to equitable distribution." N.J.S.A. 2A:34-23(h).

"In making equitable distribution of property, the Family Part must 

consider the factors outlined in N.J.S.A. 2A:34-23.1." Sauro v. Sauro, 425 N.J. 

Super. 555, 576 (App. Div. 2012). Those factors include:

a. The duration of the marriage or civil union;

b. The age and physical and emotional health of the 

parties;

c. The income or property brought to the marriage or 

civil union by each party;
32 A-3782-19

d. The standard of living established during the 

marriage or civil union;

e. Any written agreement made by the parties before 

or during the marriage or civil union concerning 

an arrangement of property distribution;

f. The economic circumstances of each party at the 

time the division of property becomes effective;

g. The income and earning capacity of each party, 

including educational background, training, 

employment skills, work experience, length of 

absence from the job market, custodial 

responsibilities for children, and the time and 

expense necessary to acquire sufficient education 

or training to enable the party to become selfsupporting at a standard of living reasonably 

comparable to that enjoyed during the marriage or 

civil union;

h. The contribution by each party to the education, 

training or earning power of the other;

i. The contribution of each party to the acquisition, 

dissipation, preservation, depreciation or 

appreciation in the amount or value of the marital 

property, or the property acquired during the civil 

union as well as the contribution of a party as a 

homemaker;

j. The tax consequences of the proposed distribution 

to each party;

k. The present value of the property;

l. The need of a parent who has physical custody of 

a child to own or occupy the marital residence or 
33 A-3782-19

residence shared by the partners in a civil union 

couple and to use or own the household effects;

m. The debts and liabilities of the parties;

n. The need for creation, now or in the future, of a 

trust fund to secure reasonably foreseeable 

medical or educational costs for a spouse, partner 

in a civil union couple or children;

o. The extent to which a party deferred achieving 

their career goals; and

p. Any other factors which the court may deem 

relevant.

[N.J.S.A. 2A:34-23.1.]

"Where the issue on appeal concerns which assets are available for 

distribution or the valuation of those assets, . . . 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). "However, where the issue on appeal concerns the manner in which 

allocation of the eligible assets is made," a reviewing court "determine[s]

whether the amount and manner of the award constituted an abuse of the trial 

judge's discretion." Id. at 444; accord Steneken, 367 N.J. Super. at 435; Sauro, 

425 N.J. Super. at 573 (quoting Genovese v. Genovese, 392 N.J. Super. 215, 223 

(App. Div. 2007)). 
34 A-3782-19

The court considered and entered findings pertaining to each of the 

statutory factors listed at N.J.S.A. 2A:34-23.1, although some of its findings 

overlapped with those it made in connection with the alimony award. 

Defendant's contentions on appeal center less around the statutory factors and 

more around the court's findings regarding seven specific assets. 

However, separate and apart from defendant's contentions pertaining to 

specific assets, since the court failed to quantify the marital lifestyle in 

connection with its alimony award as discussed above, that error has carried 

over into its rulings on the allocation of marital assets. In other words, both the 

alimony and equitable distribution rulings were "bottomed on a misconception 

of law." Sauro, 425 N.J. Super. at 573 (quoting Genovese, 392 N.J. Super. at 

223). 

N.J.S.A. 2A:34-23.1(d) requires the court to consider the standard of 

living established during the marriage when equitably distributing marital 

property. But in this case, the court failed to quantify the marital standard of 

living, or marital lifestyle, thus we remand the court's allocation of all marital 

assets for reconsideration once the marital lifestyle is quantified in the interest 

of fairness. See, e.g., Tannen v. Tannen, 416 N.J. Super. 248, 283 (App. Div. 

2010) (upon concluding that a remand was warranted pertaining to equitable 
35 A-3782-19

distribution, the court also remanded for consideration of "any effect distribution 

may have upon child support and alimony" due to their interrelated nature). 

With that in mind, we now address defendant's more specific contentions 

regarding the court's findings and conclusions about each contested asset. There 

are additional reasons that a remand is warranted – at least with respect to 

allocation of certain assets, including the Provident Bank money market account 

and the credit for BMW repairs – due to the court's failure to enter sufficient 

findings of fact and conclusions of law as required by Rule 1:7-4(a). 

VVSB Account

The court determined that the value of the VVSB account was 

$356,037.65 as of September 30, 2013. It ordered that the account "be 

distributed equally to the parties along with any gains and/or losses through the 

date of distribution" with the parties sharing the costs of distribution. 

While the court credited testimony from defendant and his father that 

defendant received annual cash gifts from his parents between 1996 and 2005, 

it rejected defendant's testimony "that the cash gifts which eventually funded the 

Vanguard [VVSB] account were never commingled with marital funds." It 

found that defendant lacked "the documentary evidence needed to substantiate 

his position" and that, without it, his "testimony is simply not believable." In 
36 A-3782-19

sum, it concluded that defendant "did not establish by a preponderance of the 

credible evidence that the cash gifts which eventually funded the Vanguard 

[VVSB] account were not commingled with marital monies." 

The court undertook a detailed analysis of the relevant testimony coupled 

with the documentary evidence that defendant produced. It explained that, 

according to defendant, the cash gifts "were initially put into Treasury bills" and 

after they matured, "they were converted into Certificates of Deposit (CDs)." It 

cited defendant's testimony "that over the course of twelve . . . years there could 

have been twenty . . . CDs and perhaps a dozen annual Treasury bills before 

that." Per defendant, "[e]ventually, the funds were transferred into" the VVSB 

account.

However, the court determined that "[t]he evidence presented at trial 

raises questions as to the location of the cash gifts before, during, and after their 

various reincarnation as Treasury bills (which were never produced or [other] 

documents), [m]oney [m]arket deposits, CDs, and Vanguard stock." It found 

that "[t]he voluminous records presented at trial did not include any proof as to 

where the cash was kept between January 9, 1996 and December 31, 2002." It 

also found that defendant "did not provide financial records to show when and 

how many Treasury bills he obtained with the cash gifts."
37 A-3782-19

More specifically, the court explained that "[d]efendant did not produce 

bank statements to confirm where the funds were deposited as he received the 

cash gifts from his parents, except for two . . . deposits into a World Savings 

Bank Money Market account" of $35,000 on December 31, 2002, and 

$51,864.28 on July 6, 2004. And yet, "[b]etween January 9, 1996, and February 

1, 2005, . . . [d]efendant was gifted $182,000.00, as confirmed by the checks 

presented at trial." It also cited defendant's testimony that he received 

$24,000.00 in 2006 but found that he "did not produce a check or other document 

to confirm the gift." 

The court determined that as of December 31, 2002, "defendant had 

collected $120,000.00 in gifts" but that "[a]fter he deposited the $35,000.00 on 

December 31, 2002 there is no record of where the remaining $85,000.00 was 

located." As to the July 6, 2004, deposit, it found that the funds "came from a 

$50,000.00 CD defendant had opened on February 3, 2004" that "matured on 

May 3, 2004" and had earned interest. Defendant then withdrew that money on 

July 28, 2004. It further found that by February 2004, "the cash gifts to 

[d]efendant totaled $160,000.00 but the statements provided by [d]efendant 

documented deposits of only $85,000.00."
38 A-3782-19

With respect to the CD statements that defendant produced, the court 

found that they "did not trace how these financial accounts evolved from the 

cash gifts of $182,000.00 that were received between 1996 and 2005." Although 

defendant testified that the VVSB account "was funded by three . . . CDs which 

he opened at World Savings Bank that had a total value of $265,000.00" the 

court found that "[t]he purchases of Vanguard stocks on February 28, 2006, May 

30, 2007, and September 26, 2007 totaled $255,000.00." Moreover, it found 

that "[d]efendant opened other CDs at Countrywide on dates that conflicted with 

the World Savings Bank CDs" and "[t]here is no explanation for how 

[d]efendant was able to fund the Countrywide CDs when, according to him, all 

his gifted assets were already accounted for in the World Savings Bank CDs 

and/or Vanguard Stocks." The court further found that it was "undisputed that 

[p]laintiff had no knowledge of the cash gifts, Treasury bills, CDs, [m]oney 

[m]arket deposits, and Vanguard stocks."

The court's conclusion that defendant did not prove, by a preponderance 

of evidence, that the VVSB account was funded by gifts he received from his 

parents is supported by "adequate credible evidence in the record." Borodinsky, 

162 N.J. Super. at 443-44.
39 A-3782-19

250 Shares of Oracle Stock

The court also found that "[d]efendant did not sustain his burden of proof 

and establish by a preponderance of the credible evidence that the 250 shares of 

Oracle Corporation are exempt from equitable distribution as either a gift or a 

premarital asset." Thus, it ordered that the Oracle stock "be distributed equally 

to the parties, with the [p]laintiff receiving one-half . . . of the stocks . . . in 

kind."

Just as he did with the VVSB account, defendant contends that the 250 

shares of Oracle stock were also purchased with gift monies and that the court 

therefore erred in determining that they were subject to equitable distribution. 

The record supports the court's conclusion that defendant failed to sustain his 

burden of proof, by a preponderance of evidence, that the 250 shares of Oracle 

stock are exempt from equitable distribution. 

2012 Hyundai

The court found that "defendant traded [] in the 2012 [Hyundai] vehicle 

on April 10, 2014 for $18,000.00, . . . without [informing plaintiff]." A month 

earlier, he had "purchased a 2014 Hyundai Genesis without the [p]laintiff's 

knowledge or consent" with "exempt funds."
40 A-3782-19

The court ordered that defendant would retain the 2003 BMW gifted to 

him from his father along with the 2014 Hyundai, and that plaintiff would retain 

the 2000 Toyota Camry. The court also ordered defendant to pay plaintiff "one 

[] half . . . of the trade-in value for the 2012 Hyundai Genesis acquired during 

the marriage, which was $18,000.00, less [d]efendant's one-half . . . share of the 

value of the Toyota Camry [$1,084.00]." Thus, defendant owed plaintiff $8,458. 

Defendant contends that the court abused its discretion when it awarded 

plaintiff a credit for one-half of the gross sales price of the 2012 Hyundai, 

without considering his payoff of the $16,657.20 outstanding loan balance on 

the vehicle, resulting in a "net gain" for him of only $1,342.80. He does not cite 

legal authority for support of this. Considering defendant had the 2014 Hyundai 

and the 2003 BMW, while plaintiff had a 2000 Toyota worth around $1,000, the 

court's determination pertaining to the equitable distribution of the value of the 

2012 Hyundai is not "an abuse of the trial judge's discretion." Borodinsky, 162 

N.J. Super. at 444. 

Proceeds from the Sale of the Marital Home

The court ordered that plaintiff shall receive sixty-five percent of the net 

proceeds following the sale of the marital home, and defendant shall receive 

thirty-five percent. It cited the "significant disparity in the financial 
41 A-3782-19

circumstances of the parties" and reasoned that "[e]ven with her share of the 

marital assets, [p]laintiff will not be able to maintain a lifestyle comparable to 

that maintained during the marriage" and that defendant "is in a far superior 

financial position" because "[h]e earns greater income, which is supplemented 

by dividends from his investments and the trust distributions from his parents" 

and "will continue to benefit from his parents' gifting and estate planning. . . ."

Defendant requested that the $170,000 balance of the $190,000 down 

payment loan from his parents be repaid from the sales proceeds, but the court 

found that his claim lacked credibility. It found that testimony from defendant 

and his father acknowledged that plaintiff had no knowledge of the loan and she 

was never shown the written promissory note signed by the defendant. 

Additionally, there are no documents or other records presented during the trial 

proving that there was a loan from the parents when the residence was 

purchased. Furthermore, it cited the father's testimony that defendant only had 

to repay the $170,000 if he and his wife needed the money.

Defendant also requested "a credit of $80,000.00 for having paid down 

the mortgage with pre-marital monies when he refinanced the property on 

October 2, 2010," but the court denied the request because his argument was not 

credible. Defendant did not provide any statements or other records to 
42 A-3782-19

substantiate his claim that he used pre-marital funds to reduce the mortgage or 

provide any proof as to the source of the $80,000. It further found that the 

Provident Bank money market statements from October 2010 confirmed that the 

$80,000 was paid from the marital funds withdrawn on October 1, 2010. 

Because the court's findings and ruling concerning the loan are based in 

large part on its determination that defendant lacked credibility, they are entitled 

to deference. Cesare, 154 N.J. at 412. The court did not abuse its discretion 

when allocating the proceeds from the sale of the marital home. Borodinsky, 

162 N.J. Super. at 444. 

Provident Bank Money Market Account

The court found that the Provident Bank money market account 

functioned as a "joint money market/savings" account. It noted plaintiff's 

testimony that defendant had withdrawn approximately $45,000 from the joint 

money market account without her knowledge and determined that bank 

statements confirmed that between June 10, 2013, and September 23, 2013, 

defendant liquidated $44,012.52 from the account and did not explain or 

otherwise document the reason for the withdrawals. Accordingly, the court 

ordered defendant to pay plaintiff $22,504, which was one half of the balance in 

the account prior to defendant's withdrawals. 
43 A-3782-19

Defendant contends that the court erred in finding that the account was a 

joint account because the account was always in his sole name. We find no 

support for that argument. Although it is true that the money market account 

was not set up as a joint account, there is no evidence that it contained exempt 

funds, such as gifts from his parents, or funds that predated the marriage. See

Pacifico v. Pacifico, 190 N.J. 258, 269 (2007) ("[T]he burden of establishing 

immunity from distribution of a particular marital asset or portion of an asset 

rests upon the spouse who asserts it."). 

However, defendant also argues that the court's finding under N.J.S.A. 

2A:34-23.1(i) that "[t]here was no testimony regarding the dissipation of assets" 

conflicts with its treatment of the Provident Bank money market account; and 

thus, the court failed to provide a dissipation analysis in its statement of reasons. 

This argument has merit and warrants a remand because the court's findings do 

not adequately comport with Rule 1:7-4(a). 

Rule 1:7-4(a) requires that "[t]he court shall, by an opinion or 

memorandum decision, either written or oral, find the facts and state its 

conclusions of law thereon in all actions tried without a jury, on every motion 

decided by a written order that is appealable as of right . . . ." "Naked 

conclusions do not satisfy the purpose of [Rule] 1:7-4." Curtis v. Finneran, 83 
44 A-3782-19

N.J. 563, 570 (1980). "Meaningful appellate review is inhibited unless the judge 

sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 

441, 443 (App. Div. 1990). 

As noted, "N.J.S.A. 2A:34-23.1(i) requires the court, in making an 

equitable distribution of marital property, to consider the 'contribution of each 

party to the acquisition, dissipation, preservation, depreciation or appreciation 

in the amount of value of the marital property.'" Kothari v. Kothari, 255 N.J. 

Super. 500, 506 (App. Div. 1992). Although the Legislature has not defined 

"dissipation" in this context, courts have considered a variety of factors:

(1) the proximity of the expenditure to the parties' 

separation; (2) whether the expenditure was typical of 

expenditures made by the parties prior to the 

breakdown of the marriage; (3) whether the expenditure 

benefitted the 'joint' marital enterprise or was for the 

benefit of one spouse to the exclusion of the other, and 

(4) the need for, and amount of, the expenditure.

[Id. at 507 (quoting Spouse's Dissipation of Marital 

Assets Prior to the Divorce as a Factor in Divorce 

Court's Determination of Property Division, 41 A.L.R. 

4th 421 (1985)).] 

"The question ultimately to be answered by a weighing of these 

considerations is whether the assets were expended by one spouse with the intent 

of diminishing the other spouse's share of the marital estate." Ibid. When 

"property has been dissipated during the marriage the asset subject to 
45 A-3782-19

distribution may take the form of a cash indebtedness to be imposed by the court 

upon one spouse in favor of the other." Id. at 510. 

In its statement of reasons under statutory factor N.J.S.A. 2A:34-23.1(i),

the court found "no testimony regarding the dissipation of assets." That finding 

conflicts with its clear findings in other parts of the statement of reasons that 

plaintiff testified that defendant had withdrawn approximately $45,000 from the 

Provident Bank money market account without her knowledge. 

Thus, it appears that the court implicitly concluded that defendant had 

dissipated $44,012.52 in cash from the Provident Bank money market account. 

But the court never cited Kothari or completed any sort of legal analysis 

pertaining to the dissipation of the Provident Bank money market account. It 

did not make findings concerning the proximity of the expenditure to the parties' 

separation, whether the expenditure was typical of those made by the parties 

during the marriage, and whether the expenditure benefitted the marital 

enterprise or solely defendant. We are constrained to remand for entry of the 

requisite findings of fact and conclusions of law as required by Rule 1:7-4(a). 

2003 BMW Repairs

The court found that defendant owned a 2003 BMW that was gifted to him 

by his parents in September 2007. The court determined that defendant had 
46 A-3782-19

exclusive use of the BMW and it was not a marital asset subject to distribution. 

However, it determined that defendant used marital funds to make significant 

repairs to the BMW and that between June 25, 2012, and August 8, 2015, 

defendant spent $23,055.94 on the BMW. Consequently, the court ordered 

defendant to pay plaintiff half of $23,055.94, or $11,528, which represented 

plaintiff's share of the marital funds that defendant used to repair his BMW. 

Defendant contends that the award constitutes a "double dip" because he 

paid for the pre-complaint repairs with marital funds and the court also awarded 

plaintiff part of the joint bank account. Based on our review, we conclude his 

"double dip" contention is unsubstantiated. 

Defendant also asserts the record shows that he only spent $20,216.89 on 

repairs. The court failed to explain the source for the $23,055.94. Again, 

"[n]aked conclusions do not satisfy the purpose of [Rule] 1:7-4," Curtis, 83 N.J. 

at 570, and they inhibit "meaningful appellate review," Salch, 240 N.J. Super. 

at 443. Because the court failed to explain how it determined that defendant 

spent $23,055.94 on BMW repairs, we remand this issue for entry of findings of 

fact as required by Rule 1:7-4(a). 
47 A-3782-19

Sony Music Entertainment 401(k) Cash Payment

The court ordered defendant to pay plaintiff $7,531.36 as one half of the 

cash withdrawal he retained when he liquidated a 401(k) retirement benefit he 

had obtained while working for Sony Music Entertainment between 1993 and 

January 2000. In determining whether the asset was subject to equitable 

distribution, the court found that it was partially exempt because defendant was 

only married during one-half of his employment at Sony. The court attached a 

Schedule A to its opinion which lists the asset at issue as totaling $15,062.72. 

The court designated $7,531.36 of the total as exempt and the remaining 

$7,531.36 as marital, and, ultimately awarded plaintiff 100% of the marital 

share. 

Defendant contends that the court erred when it awarded plaintiff half of 

these funds that were liquidated well over three years prior to the date of the 

complaint, were from his partially pre-marital savings, and were used for the 

parties' mutual benefit. He emphasizes that because the funds were used to pay 

the parties' living expenses as defendant was unemployed during that time, it 

was improper for the court to award plaintiff 100% of the marital share because 

plaintiff is benefiting from the same money twice. 
48 A-3782-19

But at trial, defendant offered inconsistent testimony about how he used 

the money. He initially testified that he used it to pay the parties' living expenses 

when he was unemployed. He later testified that he used the money to pay down 

the mortgage but admitted that he had no concrete documentation. Because 

defendant's testimony was inconsistent and he offered no documentation to 

corroborate it, defendant's "double dip" contention as to this 401(k) is not 

adequately supported by the record.

We do not conclude this was an abuse of the trial judge's discretion. 

Borodinsky, 162 N.J. Super. at 444. However, on remand, the court will have 

the opportunity to reconsider the allocation after it quantifies the marital 

lifestyle if adjustments are needed in the interest of fairness. See Steneken, 183 

N.J. at 293. 

Attorney's Fees

Plaintiff had two different attorneys during the litigation. Her first 

attorney, Toni Belford Damiano of Damiano Law Offices, submitted a 

Certification of Services dated February 7, 2017, seeking $80,158.49 in attorney 

fees, $1,000.50 in costs, and $6,704.90 in interest, for a total of $87,863.89. Her 

second attorney, John E. Clancy of Townsend, Tomaio & Newmark, LLC, 
49 A-3782-19

submitted Certifications of Services dated February 1, 2017; August 1, 2018; 

and November 14, 2019, seeking a total of $174,556.02, excluding expert fees. 

Defendant contends the court abused its discretion when it awarded 

plaintiff $110,000 in attorney fees because it: (1) erroneously relied upon the 

parties' settlement negotiations when it found that defendant had acted in bad 

faith; (2) failed to consider the parties' respective receipt of marital assets in 

determining their ability to contribute toward payment of fees; and (3) 

considered trial and post-judgment fee requests at the same time, without 

distinguishing between the two. 

Although not specified in a point heading as required by Rule 2:6-2(a)(6), 

defendant also contends that the court failed to determine the lodestar prior to 

awarding plaintiff attorney fees. Because the court made no findings concerning 

its determination of the lodestar and failed to explain how it calculated the 

$110,000 attorney fee award to plaintiff, the court abused its discretion, and we 

vacate the attorney fee award. 

N.J.S.A 2A:34-23 states, in relevant part: 

Whenever any other application is made to a court 

which includes an application for pendente lite or final 

award of counsel fees, the court shall determine the 

appropriate award for counsel fees, if any, at the same 

time that a decision is rendered on the other issue then 

before the court and shall consider the factors set forth 
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in the court rule on counsel fees, the financial 

circumstances of the parties, and the good or bad faith 

of either party.

If, upon consideration of all relevant factors, the court decides to award 

fees, it must "determine the 'lodestar,' which equals the number of hours 

reasonably expended multiplied by a reasonable hourly rate." J.E.V. v. K.V., 

426 N.J. Super. 475, 493 (App. Div. 2012) (citing Yueh v. Yueh, 329 N.J. Super. 

447, 464 (App. Div. 2000)). In doing this, the court must exclude any hours 

billed that are "not reasonably expended" and calculate the reasonable hourly 

rate as per community standards. Yueh, 329 N.J. Super. at 465 (citing Rendine 

v. Pantzer, 141 N.J. 292, 337 (1995)). 

"Where this analytical framework is followed and the judge makes 

appropriate findings of fact, a fee award is accorded substantial deference and 

will be disturbed only in the clearest case of abuse of discretion." Id. at 466. 

Additionally, "[i]n considering an award of counsel fees, the judge must comply 

with [Rule] 1:7-4(a) and clearly set forth reasons for the exercise of discretion." 

Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 439 (App. Div. 2001). 

The court issued a twelve-page statement of reasons for its $110,000 

attorney fees award to plaintiff and its denial of fees to defendant. It entered the 

order on April 30, 2020, nearly two years after entry of the June 2018 dual 
51 A-3782-19

judgment of divorce, and following numerous post-judgment proceedings. 

Defendant has not appealed the denial of his attorney fees, so we are only 

concerned with the amount of the court's award to plaintiff's counsel. 

The court discussed the relevant procedural history, both pre-judgment 

and post-judgment, cited the attorney certifications submitted by Damiano and 

Clancy, and noted their hourly rates. It found that plaintiff incurred attorney 

fees of $80,158.49 and costs of $1,000.50, for a total of $81,158.99, while 

represented by Damiano and that the balance owed to Damiano, exclusive of 

interest, was $63,983.30. It further found that plaintiff incurred and paid 

attorney fees to Clancy totaling $115,355.42 between February 2, 2016, and 

February 1, 2017. It also found that plaintiff incurred and paid additional 

attorney fees of $59,200.70 between February 1, 2017, and October 4, 2019; 

thus, plaintiff incurred and paid to Clancy a total of $174,556.12. 

After citing relevant law, the court analyzed each Rule 5:3-5(c) factor and 

ultimately granted plaintiff's request for attorney fees and awarded her 

$110,000, to be paid in three installments. Although the court properly 

considered the Rule 5:3-5(c) factors and made findings of fact relative to those, 

its statement of reasons violates Rule 1:7-4(a) because it does not provide any 

details about how, or if, it calculated the lodestar. The court did not determine 
52 A-3782-19

whether the fees charged were reasonable. Its decision does not state how many 

hours were billed, how many hours were reasonably expended, or how many 

hours (if any) the court excluded. Consequently, it is unclear why the court 

awarded $110,000 for attorney fees compared to any other amount. 

Given the lack of "appropriate findings of fact," it is unclear whether the 

court utilized the proper "analytical framework," or abused its discretion. 

Hence, we are constrained to vacate the attorney fee award and remand for 

further proceedings. 

Defendant's additional arguments are without sufficient merit to warrant 

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

We affirm the entry of divorce; the imputation of income to plaintiff; the 

inclusion of the Vanguard investment account, 250 shares of Oracle stock, the 

2012 Hyundai, and half the Sony 401(k) as marital assets subject to equitable 

distribution; and the allocation of proceeds from the sale of the marital home, 

because those rulings are adequately supported by the record. We reverse the 

alimony award, the Provident Bank dissipation account conclusion, the amount 

calculated for BMW repairs, and the attorney fee award and remand for further 

proceedings, including statements of reason pursuant to Rule 1:7-4(a). 
53 A-3782-19

On remand, the court should first quantify the marital lifestyle and then 

reconsider the alimony award, the requested Mallamo adjustment, and the 

allocation of marital assets as necessary in the interest of fairness. It should also 

enter the requisite Kothari dissipation findings before making an award with 

respect to the joint account and make N.J.S.A 2A:34-23 findings, including 

calculation of the lodestar, before awarding attorney fees.

Affirmed in part, vacated in part, and remanded for further proceedings. 

We do not retain jurisdiction.