SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

- 4267

- 17T2 D. M.H

. , Plaintiff

- Respondent,

v. H

. G.H

. , Defendant

- Appellant.

______________________________

Arg ued January 9, 2020

– Decided J une 12, 2020 Before Judges Alvarez, Nugent and DeAlmeida. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM

- 09

- 2148

- 15. Nirmal an Nagulendran argued the cause for appellant (Miller Meyerson & Corbo, attorneys; Nirmalan Nagulendran, of counsel and on the briefs). Scott D. Danaher argued the cause for respondent (Snyder Sarno D'Aniello Maceri & Da Costa LLC, attorneys; Scott D. Dan aher, of counsel and on the brief; Sarah A nne Sedlack, on the brief). PER CURIAM N O T 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

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Defendant H

. G.H

. 1 appeals from provisions of the Family Part's August 31, 2017 amended judgment of divorce : (1) setting his child support and payments in lieu of alimony ob l igations; ( 2 ) determining the value of the marital home; (3) distributing a portion of the increase in value of a premarital asset to plaintiff D.M.H. ; and (4) creating a constructive trust for his share of marital assets to ensure payment of his child su p port and other obligations

. W e reverse the provision s of the amended judgment setting defendant's child support and payments in lieu of alimony obligations because the trial court erred when imputing income to defendant . W e remand for redetermination of
t hose obligatio ns. We affirm the remain der of the amended judgment

. I. The following facts are derived from the record and the trial court's oral opinion issued after a thir teen

- day trial

. Plaintiff and defendant were married in 200 1 and had three childr e n . A s of the entry of the amended judgment of divorce, defendant was fifty

- two, plaintiff was forty

- eight, and their children were minors

.
A

. Defendant's Income

.

1 We i d entify the parties by initials to protect the confidentiality of court records relating to domestic violence. R. 1:38

- 3(d)(9) and (13).3 A

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D efendant ha s a bachelor's degree in mathematics and economics and a
master ' s degree in eco n omics from a university in Ireland

. He also ha s a senior commercial pilot's license but ha s not flown commercial airlines since the early 1990 ' s when he worked for Ryanair , an Irish entity

. When the parties married, defendant was a voice broker in the fo r eign exchange market on Wall Street

. He explained this position as being a "middle man," matching potential buyers of foreign currency with sellers and earning a commission on each transaction . He execute s exchanges over the telephone, rather than ele ct r onically. Defendant began working at Tullett , a Manhattan brokerage firm , in 1993

. In his three highest salary years , defendant earned $500,000 , $500,000, and $700,000 in con secutive years. After the financial crisis of 2008 , his income decrease d sign if

i cantly . Defendant identified three reasons for the change : (1) advances in technology rendering voice brokers obsolete ; (2) his age ; and (3) the 2010 enactment of the Dodd

- Frank Wall Street Reform and Consumer Protection Act , 12 U.S.C.A. § § 5301 to

- 5 6 34 ; 15 U.S.C.A. § § 1601 to

- 02, § 1631 (Dodd

- Frank), and related regulations

. With respect to technology, screen

- based trading programs using complex algorithms progressed to become "far more cost effective and efficient than a4 A

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voice broker

. " At trial, defe n dant predicted that within two years voice brokers would be obsolete. De fendant testified his advancing age a ffected his earning capacity because most traders were younger than thirty

- two , and the typical trader would
not want to conduct bus iness with som e one of defendant's generation. Finally, according to defendant, Dodd

- Frank and related regulations cha nged the nature of his business

. Defendant develop ed personal relationships with banking clients , who he commonly entertain ed several nigh ts a week. He view s these relationships as essential to his ability to genera te transactions

. After the 2008 recession, h e entertain ed clients approximately only one night every other week. Since enactment of Dodd

- Frank , brokerage firms a re no longer permitted to ent e rtain banking clients. Defendant testified the Dodd

- Frank regulations also curtailed banks' ability to trade and diminished their appetite for risk . As a result, trading volume decreased significantly, and br okerage firms contracted. According to defend a nt, while he once was able to facilitate a trade every five minutes, by the time of the 2017 trial he was lucky to make two trades in a ten

- hour workday

. Because of the contraction , voice brokers lost leverag e to negotiate higher compensation. His emplo y er cut commission rates by forty or fifty percent.5 A

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Defendant left Tullett in 2013. The reason s for his departure were contested at trial. P laintiff testified Tullett , dissatisfied with defendant's drinking h abit s, demoted him and reduced his pay to forc e him to leave

. She testified defendant told her he was reprimanded for taking extended client lunches and returning to the office intoxicated

. Defendant denied being disciplined for his alcohol use and testif ied Tullett closed the desk at which he worked because Dodd

- Frank prohibited brokerage firms from having competing desks. According to d efendant , Tullett offered him a position at base salary of $100,000, but he declined and negotiated a deal
to earn $300,000 at GFI, where he started working as a for e ign ex change broker in 2013. Beginning in February 2015, defendant's salary at GFI was cut to $250,000 per year because he was n ot meeting his contractual quota
. He testified his failure to fulfill his qu ota was not his fault but resulted from changes in the industry. He was informed in writing by GFI he could be terminated at any time. A few weeks later , plaintiff filed for divorce. On October 6, 2015, defendant's employment with GFI ended. According
t o defendant, approximately forty percent of GFI e m p loyees were terminated at that time

. He testified GFI was moving toward pay ing brokers $100,000 per6 A

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year instead of $300,00 0. Because he did not supply his 2015 or 2016 income
tax returns at trial , defendant's gross income for those years is not in the r ecord

. A fter he was terminated from GFI, defendant left for Europe for about ten weeks. He testified the trip was to "go home [,]

. . . regroup [,] " and explore employment opportunities. Al though he claimed he interviewed unsuccessfully with Ryanair and a London brokerage firm , he produced no evidence of job interviews. Defendant ended his trip with a two

- week stay in the Canary Islands

. After defendant returned from Europe, Tullett offered him a position as a foreign exchange broker for $75,000 a year . T radition America (Tradition) thereafter offered defendant a position as a foreign exchange broker for $90,000
per year and commissions . Defendant started at Tradition in November 2016

. At Tradition, defendant earned a thirty

- percent commission, and
gener a t ed about $25,000 of business per month. He testified that p rior to 2008 he earn ed a forty

- percent commission and generate d $100,000 in business in an average month. He also had a "seat cost" at Tradition for use of the firm's computer terminal and othe r expenses totaling about $98,000 a year , which diminished his net income

. Defendant testified his $90,000 salary represented the most he could earn in any occupation. According to defendant, v oice brokering was a "niche7 A

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market," that was "dying," and he h ad a unique skill set not useful to brokering other types of financial product s . He testified he was too "burned out" to find work in a nother fie l d

. He considered seeking a position in aviation but believe d he would earn about $30,000 a year a s a first o fficer and be subject to mandatory retirement at sixty

- five

. Defendant presented Richard Higgs as an expert in the f oreign exchange industry. He testified the fie l d had contracted dramatically and the number of voice brokers had shrunk from about three h u ndred in 2007 to less than fifty in 2017. He testified he re alized in 2008 the boom period for foreign exchange brokers w as ending and told his employees, including defendant, to start saving or investing in other businesses. According to Higgs , while i t was "very easy for a lay person to look at . . . compensatio n over the years and think that this is like any other industry and that income over the course of one's lifetime is linear . . . or increasing gradually," that was "just not the case here. Thi s is a cliff

. " Higgs testified the industry had gone from a fr agmented, volatile, and "highly opportunistic" market to a heavily regulated field, which led to "a cascade of other outcomes ." The first of these outcomes stemmed from the reduction in the num b er of banks. Because banks were foreign exchange brokers' cl ients, their contraction necessarily reduced brokers' commissions. A8 A

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broker, in Higgs' s view, was "only as employable as his ability to make commissions.

. . . [T] here's no other real value t h at a voice broker provides other than their relationships wit h particular banks

. " He opined that v oice brokers had " no proprietary knowledge or information, " but instead were

" literally leveraging their relationships with two or three traders in order to get them to do business with them

. " Second, according to Higg s, there was a dramatic consolidation of voice brokerage firms from more than a hundred at the beginning of this century to three in 2017. This came about because technology eliminated the "mar k et manipulation" a voice broker could engage in with a trader now that all deals and interests are accessible on an electronic platform

. Third, according to Higgs, as technology expenses increased, brokerage firms pushed those expenses onto brokers

. Fourt h , Higgs testified that following the 2008 financial crisis, the federal government bought several banks' toxic assets on the condition the banks limit speculation in foreign currency. Reduced speculat ion decreased market volatility, compressed commission s , and lowered brokerage firm income. In Higgs' s vie w, Dodd

- Frank resulted in voice brokers being paid what "they always should have been paid, which is very little

. "9 A

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As a result of these and other factors, Higgs testified, the remaining voice brokers in t he foreign exchange market, probably around forty

- fi ve in total , were making between $50,000 and $250,000 as a base salary

. By contrast, between 2004 and 2012, the average salary for a broker in the market was about $400,000

. He testified that voice bro k ers who left the industry were primarily in real est ate sales or were insurance brokers

. Defendant, in Higgs' s opinion, was a "good broker," but "never a top ten percent broker" and had been "skating along . . . the unemployability line

. " His best skill w as "endearing himself to others" and "establish[ing] relationships" with traders, but that skill was now irrelevant in the field, "[b]ecause bank traders no longer trade on relationships

. . . . " Higgs believe d defendant was no longer capable of earning m ore than $100,000 a year as a voice broker and t he prospect of him earning $250,000 was a "very long shot

. " According to Higgs, the problem was not "specific to him but endemic in the

. . . market

. " The trial court found defendant had "a significant earn i ng capacity " as demonstrated by his prior income and had been "voluntarily unemployed during the majority of this litigation," and underemployed in his current position. The
court concluded that, after losing his job in 2015, defendan t failed to engage i n "substantial efforts to find alternative employment or other means of earning10 A

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money in addition to his job as a foreign exchange broker," given that "the skills he ha[d] developed [we]re transferrable to other industries and he did no t prove otherwise

. " In addition, the court found d efendant " failed to show that he [wa] s unable to earn greater income in a different market or with a different position and admitted that he could earn more but was essentially 'burned out

. ' " Although the court found Higgs t e stified credibly about the industry, it concluded defendant "presented no reliable testimony as to his employability or overall diminished earning capacity by way of an expert." F inding defendant to be " an industrious, intelligent and educated individual , " the court imputed income to him of $300,000 annually

. The court used the imputed income to determine defendant's child support obligation and payments in lieu of alimony. B

. The Marital Home. In 2008, the parties purchased a house in Weehawken that w as t he marital home for the remainder of their marriage. The h ouse is on a cliff and has a view of the Manhattan skyline. Three experts testified with respect to the fair market value of the home for purpo ses of equitable distribution , all using the comparab l e sales approach to determ ine value. A court

- a ppointed real estate appraiser consider ed a number11 A

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of comparable sales, to which he made adjustments . He opined a fair market value for the home of $439 p er square foot of living space . Although the hous e i s 5 425 square feet , he based his opinion of value on 2 768 square feet of "livable area," which did not include the finished basement

. He appraised the value of the house a t $1,215,000.
T he expert also c onsidered high

- rise apartments soon to be built betwe e n the house and the Hudson River, which would obstruct some, but not all, of the skyline view. In addition, he noted the house's cliffside location was "not the most desirable area for people with fami lies

. " Plaintiff's expert opined a fair market value o f $1,235,000. He also excluded the basement area when determining value. Both experts testified that the appraisal industry standard is to consider a basement to be an amenity. Defendant's expert opined a fair market value of $1,750,000 for the home

. W h en reaching that opinion, h e made significant ad justments to several of his comparable sales and included the basement , which contains four of the home's five bedroom s and ha s t he best views of the skyline , in the home's living space

. Defendant testified h e received an offer to purchase the marital home for $1,700,000 from his brother

- in

- law, an officer with an Irish real estate compan y . The brother

- in

- law testified he regularly boug ht and so ld luxury real estate in12 A

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Europe

. He had never been inside the h o use but saw it from the Hudson River and read defendant's expert's appraisal report. The court determined the fair market value of the marital home to be $1,215,000 based on the opinion of th e court

- appointed expert. The court did not afford the opinion o f defendant's expert great weight , finding he had deviated from industry standards with respect to his treatment of the basement

. C

. The H oboken Property

. Be fore the m arriage, defendant bought a residential condo minium unit in Hoboken for $220,000 . After the parties married , the y lived in the unit briefly

. The unit was thereafter used as a rental property
. Because defendant preferred not to engage with the homeowner's associat ion, plaintiff was responsible for finding tenants, collecting rent, and otherw i se operating the property
. During plaintiff's management of the property, it was not in arrears on its mortgage or association fees

. After plaintiff filed for divorce, defenda nt took control of the property , including collecting rent . By the time of the trial, the property, despite generating approximately $6000 a month in rent, was in pre

- f or e closure on its mortgage and line of credit

. The trial court o rdered the Hoboken pro perty be sold "to insure the stability and financial support" of the children.13 A

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The trial court held that the central inquiry with respect to whether the Hoboken unit was subject to equitable distribution is whether "the incremental increase in the value of the property," during the marriage was attributable either to the joint effor t s of the couple or to the indi vidual contributions of plaintiff. The court found that plaintiff "was a full time homemaker for part of the marriage and child rearer," who also managed the Hoboken property "in all respects," including "assuring it was ren t ed," and "dealing with the ass ociation members the defendant disliked." The court noted that during that period , there was never a late payment on the property. The court found the parties pooled their resources during the marriage to
pay expenses , inclu d ing when the Hoboken unit served as the marital home . The court concluded " the increased equity in the premarital residence that resulted from payments towards the principal pay down of the mortgage as opposed to increasing the home values, [was] to be c o nsidered as a marital asse t acquired by the parties during the marriage and thus su bject to equitable distribution." The court directed p roceeds from the sale of the property be distributed eighty percent to defendant and twenty percent to plaintiff

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D

. Th e Constructive Trust. Pla intiff testified that b eginning in 2008, around the same time defendant's employment prospects were changing , his drinking increased and intensified

. She described several instances she believed demonstrated defendant' s "alcoho l ism, his utter lack of cont rol and any level of responsibility to his family as a father

. " According to plaintiff, defendant was v erbally and physically abusive toward her a nd family members on a number of occasions

. In addition, plaintiff testified d ef

e ndant was unavailable to he r and the children for extended periods of time without explanation

. A n expert in psychiatry , with a specialty in addiction, conducted a psychiatric and substance abuse evaluation of defendant and interviewed plaintiff

. He diag n osed defe ndant with alcohol use disorder, having found a "clear pattern" of association between his drinking and his vio len t acts
. In a M ay 2015 consent order , defendant agreed he would maintain the family's financial status quo . He failed to do so by no t paying bills and stopping payments on checks plaintiff w rote for household expense s . D efendant also sabotaged the poten tial sale of a troubled bar in which he held an interest by refusing to sign closing document s. He sent a series of emails
to an attor n ey involved in the transaction in which he said he would rather see15 A

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the bar " burn to the ground" than allow plaintiff an d his business partners to profit from its sale

. In an expletive

- ridden email he threatened to castrate another attorney if he emailed him again

. Defendant admit ted he had been drinking when he sent that email and that it was "immature and childish

. " While in Europe, defendant transferred € 25,000 from the couple's joint account to his personal account at the Bank of Ireland. He testifi e d he used the money to pay a debt but offered no proof of the debt o r any payments
. The person to whom th e debt purportedly was owed testified at trial but did not mention the debt or any payment s . While in Europe, defendant did not support his family f

i nancially, and made no payments on the mortgage or line of credit on the marital home or the line of credi t on the Hoboken property
. During the marriage, the parties established college savings accounts for their children

. The court found defendant withd r e w approximately $77,000 from t hose accounts for his personal use and enjoyment after the divorce complain t was filed

. B etween May 2015 and August 2016, defendant , while unemployed, withdrew from ATMs , or charged , a total of $14,446.37 at or near casinos. He testified that he gave the money withdrawn from ATMs to a friend to whom he had a debt

. According to defendant, his friend is a professional poker player16 A

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who agreed to gamble with defendant's money and split his winnings to reduce the debt

. He provi d ed n o documentary evidence to support his testimony

. O n August 16, 2016, the trial court ordered on e of defendant's 401(k)
account s be liquidated and placed in escrow, in part, to make current the mortgage on the marital home. Defendant withdrew $125,33 1 .41 from the account and transferred $117,020 to his counsel. Of that amount , $ 25,000 was paid to each party ' s attorney s and about $55,000 was used to bring the mortgage current on the marital home

. Defendant testified that he used the $8341.41 not
tran s ferr ed to his attorney to pay a friend rent for having stayed in his apartment

. Defendant admitted he had not made child support payments as previously ordered

. As of trial, his child support arrears totaled $22,618. Plaintiff testifie d defendant's erra t ic behavio r could jeopardize her financial interest and sought imposition of a constructive trust on defendant's share of marital assets

. The court found it "impossible to afford [defendant] great credibility," particularly with respect t o his withdrawals purportedly to repay debts , about which he provided no proof

. The court also concluded "[n]umerous examples of noncompliance by defendant . . . evidenc[ed] his inability to adhere to court orders and a pattern of continued noncompliant b ehavior

. . . . " The court found defendant ha s alcohol abuse issues and a "pattern of conduct, which is of great17 A

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concern as [ to ] his stability and emotional well [

- ] being

. " The court concluded imposition of a constructive trust was "necessary, perhaps not permanently, but at the very least until all of the equitable distribution is finalized." On August 31, 2017, the trial court entered an amended final judgment of divorce incorporating its decision

. Th is appeal followed. Defendant raises the following arguments: POINT I THE TRIAL COURT ABUSED ITS DISCRETION BY DISREGARDING NEW JERSEY LAW ON INCOME IMPUTATION. POINT II THE TRIAL COURT ABUSED ITS DISCRETION BY DISREGARDING THE FACTS AND EVIDENCE PRESENT ED AT TRIAL WITH REGARDS TO THE DEFENDANT'S EMPLOYMENT AND INCOME.

POINT III THE TRIAL COURT ERRED BY DETERMINING DEFENDANT WA[S] REQUIRED TO FIND [AN] ALTERNATIVE ADDITIONAL SOURCE OF INCOME. POINT IV THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING A CONSTRUCTIVE TRUST WHEREIN THE DEFENDANT WAS COMPLETELY18 A

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- MARITAL PROPERTY. POINT VI THE TRIAL COURT AB USED ITS DISCRETION IN DETERMINING THE VALUE OF THE MARITAL HOME. II. Our re view of a Family Part's order is limited. Cesare v. Cesare , 154 N.J. 394, 411 (1998) . "[W]e do not overturn those determinations unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Storey v. Storey , 373 N.J. Super. 464, 479 (App . Div. 2004)

. We must accord substantial deference to the findings of the Family Part due to that court's "special jurisdiction and expertise in family matters . . . ." Cesare , 154 N.J. at 413. We must defer to the judge's factual determinations, so lon g as they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am. , 65 N.J. 474, 483

- 84 (1974). This court's "[a]p pellate review does not consist of weighing evidence anew and making19 A

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independent fact ual findings; rather, [this court's] function is to determine whether there is adequate evidence to support the judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino , 319 N.J. Super. 342, 347 (App. Div. 1999) (citing State v. Johnson , 42 N.J. 146, 161 (1964)). We review de novo the court’s legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. , 140 N.J. 366, 378 (1995). In addition, there must be "deference to the trial court's credibility determinations[,]" N.J. Div. of Youth & Family Servs . v. M.M. , 189 N.J. 261, 279 (2007), "because it 'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a revie wing court in evaluating the veracity of a witness.'" City Council v. Edwards , 455 N .J. Super. 261, 272 (App. Div. 2018) (quoting Gnall v. Gnall , 222 N.J. 414, 428 (2015)).

A. Imputation of Income to Defendant. In " any matrimonial action

. . . the court may make such order as to the alimony o r maintenance of the parties . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just

. . . . " N.J.S.A. 2A:34

- 23

. " Underpinning the basis of every support order is t he proposition the payor has the ' abili ty to pay ' the amount set

. . . . " Dorfman v. Dorfman , 315 N.J. Super. 511, 516 (App. Div. 1998).20 A

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"[W] hen a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that paren t to provide for the child's needs. " Ca plan v. Caplan , 182 N.J. 250, 2 68 (2005)

. " Inherent i n a finding of 'underemployment' is the notion the obligor is intentionally failing to earn that which he or she is capable of earning ." Dorfman , 315 N.J. Super. at 516 ; a cc o rd Strahan v. Strahan , 402 N.J. Sup er. 298, 312 (App. Div. 2008). "[T] he obligor must establish that he or she is earning at capacity, i.e. , not underemployed, in order to avoid imputation ." Storey , 373 N.J. Super. at 474. "Imputation of inc o me is a discretionary matt er not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Ibid. When an obligor shows "a concerted effort to find the same work at comp a rable pay [,] . . . that ob ligor establishes that he or she is not voluntarily underemployed in the new job." Id. at 472. Defendant argues the trial court mistakenly exercised its discretion when imputing income to him because the record establishes he w a s working at capacity in h is chosen field after losing a higher paying position as a result of market changes beyond his control. We agree. While the record supports the trial court's finding defendant spent more than a year not seriously pursuing maxima l employment after he was t erminated21 A

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by Tullett , it also contains undisputed evidence the voice trader foreign exchange market seriously contracted after the 2008 financial crisis as a result of the enactment of Dodd

- Frank and related regulations and advan c es in technology

. The only expert testimony in the record with respect to defendant's earning potential is Higgs 's opinion defendant i s no longer capable of earning more than $100,000 per year in the field in which he has been employed for the entire

marr i age and nearly all of his adult life. We see no evidence supporting the finding he is able to earn three times that amount in his present field or in another profession , including aviation. See Ibrahim v. Aziz , 402 N.J. Super. 205, 2 12

- 14 (App. Div. 200 8 ) (holding it is e rror to impute income that "bears no relationship to defendant's earnings or ability to earn money"). Defendant's age and relative lack of skills , along with market and legal changes make it unlikely he will earn more than he does at hi s present position. We therefor e vacate the portion s of the amended final judgment of divorce establishing defendant's child support and payments in lieu of alimony obligations based on imputed annual income of $300,000 . We remand for a new determination o f defendant's chil d support and other obligations based on income reflecting market conditions in his field and his proven earning capacity

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B. Valuation of Marital Home.

" Great deference is to be shown to a judge's discretionary decisions in bench trial s . " In re A

. , 277 N.J. Super. 454, 472 (App. Div. 199 4). In particular, "[a]s the finder of fact, the trial judge ha[s] the prerogative to evaluate the credibility of the testimony of . . . competing experts," and to determine which expert opinion is the most credible

. N.J. Div. of Child Prot. & Permanency v. M. M. , 459 N.J. Super. 246, 258 (App. Div. 2019).

" There are three traditional appraisal methods utilized to predict what a willing buyer would pay a willing seller on a given date, applicable to dif f erent types o f properties: the comparable sales method, capitalization of income and
cost. " Brown v. Borough of Glen Rock , 19 N.J. Tax 366, 376 (App. Div. 2001). "The comparable sales approach is generally accepted as an appropriate method of estimating the value of a single

- family residence." Elrabie v. Borough of Franklin Lakes , 24 N.J. Tax 158, 176 (Tax 2008) (citing Brown , 19 N.J. Tax at 377.) This method of valuation has been defined as " [a] set of procedures in which a value indication is derived by comparing the property being appraised to similar properties that have been sold recently, applying appropriate units of comparison, and making adjustments to the sales prices of the comparables based on the elements of comparison. " Ibid. (alteration i n original)

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Our review of the record revealed the trial court 's determination of the fair market value of the marital home is supported by adequate , substantial, credible evidence

. Cesare , 154 N.J. at 411

- 12 . Having heard the testimony of three expert appraisers, t he court determined the opinion of value offered by the court

appointed expert applying the well

- established sales comparison approach applicable to single

- family homes was credible. We see no basis on which to disturb that conclusion. C. Di s tribution of Premarital Assets. The "court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired b y them or either of them during the marriage

. . . . " N.J.S.A. 2A:34

- 23(h). The statute

" should be construed, to the extent feasible, to effectuate the public policy underlying the equitable distribution law, which is to recognize that marriage is

' a sh a red enterprise, a joint undertaking, that in many ways . . . i s akin to a partnership. '" Weiss v. Weiss , 226 N.J. Super. 281, 287 (App. Div. 1988) (quoting Smith v. Smith , 72 N.J. 350, 361 (1977) ). "A ny property owned by a husband or wife at the time o f marriage will remain the separate property of such spouse and in the event of divorce will be24 A

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considered an immune asset and not eligible for distribution ." Valentino v. Valentino , 309 N.J. Super. 334, 338 (App. Div. 1998) . However, such "[p]roperty 'c l early qualifies for distribution' when it is 'attributable to t he expenditure of effort by either spouse' during marriage." Pascale v. Pascale , 140 N.J. 583, 609 (1995). Whether "the appreciation during the marriage of a pre

- owned asset will be subject t o distribution" depends on whether the "asset is active or pass ive." Valentino , 309 N.J. Super. at 338. " Passive immune assets can be defined as those assets whose value fluctuations are based exclusively on market conditions. " Ibid. " A n active, immun e asset involves contributions and efforts by one or both spouse s toward the asset's growth and development which directly increase its value ." Ibid. " When the increase in value is brought about solely through the efforts of the owner, that value is undi s tributable ." Ibid. However, " when such value is derived, in pa rt or in whole, from the efforts of the non

- owner, the appreciation is subject to distribution ." Ibid. " The increased value of active immune assets must be considered eligible to the extent
t hat it may be attributable to the expenditures or the effort of the non

- owner spouse, and a determination must be made regarding the extent the original investment has been enhanced by contributions of either spouse ." Ibid. "The25 A

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burden of establishing i m munity rests upon the spouse asserting such immunity." Ibid. ; a ccord Pacifico v. Pacifico , 190 N.J. 258, 269 (2007)

. "Appellate review pertaining to the division of marital assets is narrow." Valentino , 309 N.J. Super. at 339. We "decide whether the tr i al [court] mistakenly exercised its broad authority to divide the parties' property and whether the result was 'reached by the trial judge on the evidence, or [was] clearly unfair or unjustly distorted by a misconception of law or . . . fact

. . . . '" Ib i d. (quotin g Wadlow v. Wadlow , 200 N.J. Super. 372, 382 (App. Div. 1985)). Having carefully reviewed the record, we reject defendant 's argument that the trial court abused its discretion in awarding plaintiff a percentage of the Hoboken unit sale proceeds

. The recor d contains evidence the parties pooled their resources when they lived in the property and paid its mortgage. In addition, plaintiff managed the property for years when it served as an income

producing rental unit

. Th ese facts constitute suffi c ient suppo rt for the trial court's conclusion the Hoboken property was an active immune asset of the marriage, subject to equitable distribution. D

. Constructive Trust. "[C]ourts are authorized to impose a constructive trust, wherever specific restitutio n in equity is appropriate on the facts." Flanigan v. Munson , 175 N.J.26 A

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597, 608 (2003) (internal quotations omitted) . "[A] constructive trust is a powerful tool to be used only when the equities of a g iven case clearly warrant it." Id. at 611. I n deter m ining whether a constructive t rus t is justified , courts employ a two

- prong test. Id. at 608. "First, a court must find that a party has committed 'a wrongful act.'" Ibid. (quoting D'Ippolito v. Castoro , 51 N.J. 584, 589 (1968)). The "wrongful ac t" will "usually" be, but is not limited to, either "fraud, mistake, undue influence, or breach of a confidential relationship, which has resulted in a transfer of property." Thieme v. Aucoin

- Thieme , 227 N.J. 269, 28 8

- 8 9 (2016) (quoting D'Ippolito , 51 N.J . at 58 9 ). "Second, the wrongful act must result in a transfer or diversion of property that unjustly enriches the recipient." Flanigan , 175 N.J. at 608. "To prove a claim for unjust enrichment, a party must demonstrate that the opposing party 'received a bene f it and that retention of that benefit without payment would be unjust.'" Thieme , 227 N.J. at 288 (quoting Iliadis v. Wal

– Mart Stores, Inc. , 191 N.J. 88, 110 (2007) ). "The circumstances in which a constructive trust may be imposed are as extensive as req u ired to reach an equitable result." Thompson v. City of Atl. City , 386 N.J. Super. 359, 376 (App. Div. 2006), aff'd as modified and remanded , 190 N.J. 359 (2007).27 A

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We agree with the trial court's conclusion that prong one is satisfied by defendant' s "comp l ete disregard, disdain and dismissive conduct towards the seriousness of court procedures, orders and requirements [,] " his "deficient efforts to replace income" when he was fired from Tullett , his "unilateral allocation of marital funds," and his " dissipa t ion of marital assets" by accruing arrears on the Hoboken property
. We also agree the second prong was established by defendant's decision "to spend money gambling, traveling, and dissipating assets" amounting to more than $125,000 rather than making

rea s onable efforts to comply with court

- ordered child support

. Imposition of a constructive trust was warranted. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.