                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2453-16T1

DEBORAH CARR,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

HARRY CARR,

     Defendant-Appellant/
     Cross-Respondent.
___________________________

                    Argued October 2, 2019 – Decided October 29, 2019

                    Before Judges Yannotti, Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Somerset County,
                    Docket No. FM-18-0937-06.

                    Harry Carr, appellant/cross-respondent, argued the
                    cause pro se.

                    James P. Yudes argued the cause for respondent/cross-
                    appellant (James P. Yudes, PC, attorneys; James P.
                    Yudes, of counsel; Karen Tichenor Willitts, on the
                    briefs).
PER CURIAM

       Defendant appeals from an order dated June 29, 2016, and other orders

entered by the Family Part in these divorce proceedings. Plaintiff cross-appeals

from the June 29, 2016 order. For the reasons that follow, we affirm on the

appeal and cross-appeal.

                                        I.

       The parties were married in May 1988 and thereafter adopted a child, who

we refer to as A.C. Plaintiff filed a complaint for divorce on April 27, 2006.

Thereafter, defendant filed an answer, a counterclaim for divorce, and a third-

party complaint in which he asserted claims against plaintiff's parents and

sisters.   The third-party claims were later resolved.     Thereafter, the judge

conducted a trial in the matter on fifty-five non-consecutive days and filed a

comprehensive written opinion, which was memorialized in a final judgment of

divorce (FJOD), dated June 29, 2011.

       Among other things, the FJOD provided for the equitable distribution of

the parties' assets, including defendant's ownership interest in HM, LLC (HM),

a business that purchased, sold, and leased aircraft for charter services; awarded

plaintiff permanent alimony in the amount of $10,000 per month; required

defendant to pay child support of $500 per month, provide health insurance


                                                                          A-2453-16T1
                                        2
coverage, and pay certain uninsured healthcare expenses for A.C.; ordered

defendant to maintain his "current life insurance policy" with plaintiff and A.C.

named as beneficiaries; and awarded plaintiff attorneys' fees in the amount of

$300,000.

      Plaintiff and defendant appealed from the FJOD. While the appeal was

pending, defendant filed an application in the Family Part to terminate or reduce

alimony based on changed circumstances. The trial court deferred consideration

of the motion.

      We affirmed the FJOD in large part, but remanded the matter to the Family

Part to: complete a child support worksheet; provide a more detailed explanation

of the award of attorneys' fees; conduct a full valuation and equitable

distribution of HM; and consider plaintiff's claim for distribution of a share of

an account with Bank of America. Carr v. Carr, No. A-5558-10 (App. Div. Oct.

11, 2013) (slip op. at 33, 35, 45, 54).

      On June 30, 2014, the trial judge issued her decision on child support, the

Bank of America account, and the award of attorneys' fees. On July 18, 2014,

another Family Part judge granted defendant's application for a plenary hearing

on his alimony motion and reduced alimony to $5900 per month, pendente lite,

without prejudice.


                                                                         A-2453-16T1
                                          3
      On June 12, 2015, the judge consolidated the hearing on defendant's

motion with the trial on the valuation and distribution of HM. The parties also

asserted certain other demands for relief.   The judge appointed Jeffrey D.

Urbach, a certified public accountant, to serve as the court's expert for the

valuation of HM. On February 1, 2016, the judge denied defendant's motion for

her disqualification and a change of venue. The judge thereafter conducted a

trial over seventeen non-consecutive days.

      On June 29, 2016, the judge filed her opinion and order. The judge found

that defendant's ownership interest in HM had a value of $149,000 as of the

valuation date, based on the opinion of plaintiff's expert, certified public

accountant R. Joseph Gunteski. The judge distributed defendant's ownership

interest in HM and all of the company's outstanding debt to defendant. The

judge ordered defendant to pay plaintiff $243,764, which was her share of the

marital funds defendant had dissipated.

      The judge also reinstated defendant's alimony obligation to $10,000 per

month retroactive to July 18, 2014. In addition, the judge ordered defendant to

obtain and maintain a life insurance policy with a death benefit sufficient to

ensure full payment of his alimony and child support obligations. The judge




                                                                       A-2453-16T1
                                      4
awarded plaintiff $50,000 in attorneys' fees for the second trial. Thereafter, the

trial judge retired.

       On October 17, 2016, another Family Part judge entered an order denying

defendant's motions for reconsideration, for a mistrial, and to reopen and

supplement the record. On January 13, 2017, the judge denied defendant's

motion for reconsideration of the October 17, 2016 order. Defendant's appeal

and plaintiff's cross-appeal followed.

                                         II.

      We turn first to defendant's contention that the trial judge erred by denying

his motions for her disqualification and a change of venue.

      The record shows that after the judge filed the FJOD, she was transferred

to the Criminal Part.     Consequently, another Family Part judge assumed

responsibility for certain post-FJOD motions in this case, and defendant filed a

motion for that judge's disqualification. The Family Part judge denied the

motion and defendant appealed.

      In an unpublished opinion, we held the judge was disqualified and should

have recused herself. Carr v. Carr, No. A-6393-11 (App. Div. June 20, 2013)

(slip op. at 2). We vacated the judge's orders and remanded the issues addressed

in those orders for consideration by another judge. Ibid.


                                                                           A-2453-16T1
                                         5
      The judge who presided at the first trial later returned to the Family Part

and again assumed responsibility for this case. Just prior to the scheduled trial

date, defendant filed a motion for the judge's disqualification and transfer of the

case to another vicinage. Defendant argued that in the prior proceedings, the

judge had made certain credibility findings, which he believed indicated she

could not handle the case in a fair and impartial manner.

      Defendant also claimed the previously-disqualified Family Part judge had

remained involved in the case by assigning his alimony motion to the trial judge.

In addition, defendant asserted he could not receive a fair and impartial trial

before the trial judge or any other judge in the vicinage. The trial judge denied

the motion.

      In a decision placed on the record, the judge stated that her findings about

defendant's credibility were based on discrepancies between his statements and

the evidence, and her decisions were based on the record and the applicable law.

The judge commented that she had "no animosity" toward defendant, and that

the Assignment Judge for the vicinage had assigned the case to her, not the

disqualified judge. She also stated that the case had been pending in the county

for ten years, and a transfer of the matter to another vicinage would "cause delay

and hardship for both parties."


                                                                           A-2453-16T1
                                        6
      On appeal, defendant does not specifically take issue with the judge's

decision. Instead, he argues that the judge improperly "testified" as to the scope

of Urbach's assignment as the court-appointed valuation expert. However, the

judge's remark regarding the scope of Urbach's engagement was not improper

testimony, but rather a summary of Urbach's testimony. Furthermore, there is

nothing in the record which suggests that the trial judge could not handle this

case fairly and objectively.

      Defendant further argues that the judge lacked "the requisite jurisdiction

or delegation" under Rule 4:3-3(a) to rule on his venue-transfer motion. He also

argues that the failure to transfer venue "tainted the entire trial." Again, we

disagree.

      Rule 4:3-3(a) states that a change of venue can be ordered for various

reasons, including a "substantial doubt" that a fair trial may be had in a given

location. Here, there was no basis for defendant's claim that the matter could

not be tried fairly in Somerset County.

      Moreover, the rule states that a change of venue may be ordered by "the

Assignment Judge or the designee of the Assignment Judge of the county in

which venue is laid . . . ." Ibid. The rule contemplates that venue will not be

changed except by order of the Assignment Judge, or a judge designated by the


                                                                          A-2453-16T1
                                          7
Assignment Judge to change venue. Here, venue was not changed, and the rule

did not preclude the trial judge from ruling on the motion.

                                        III.

      Next, defendant argues that the judge erred by consolidating the hearing

on his alimony motion with the trial on the valuation and distribution of HM.

He contends the judge's decision to consolidate these matters was an abuse of

discretion and evidence of a pre-determined outcome.           He asserts the law

applicable to these decisions is different, and that the facts relevant to these two

matters were "literally a decade apart."

      Rule 4:38-1 provides that on its own motion or the motion of a party, the

court may consolidate "actions involving a common question of law or fact

arising out of the same transaction or series of transactions." The decision to

consolidate two or more matters for a single trial "lies within the discretion of

the trial court," and should not be set aside "unless the lower court p ursued a

'manifestly unjust course.'" Union Cty. Improvement Auth. v. Artaki, LLC, 392

N.J. Super. 141, 149 (App. Div. 2007) (quoting Gittleman v. Cent. Jersey Bank

& Tr. Co., 103 N.J. Super. 175, 179 (App. Div. 1967)).

      Here, the judge's decision to consolidate the hearing on the alimony

motion with the trial on the valuation and distribution of HM was not a mistaken


                                                                            A-2453-16T1
                                           8
exercise of discretion. As the judge pointed out in her decision, the issues

pertaining to alimony and equitable distribution were intertwined. Therefore, it

was reasonable for the court to consolidate these related matters for trial.

Defendant's assertion that the judge's decision to consolidate the matters was

evidence of a pre-determined outcome is patently without merit.

                                      IV.

      We turn to defendant's contentions regarding the judge's decision on

valuation and distribution of HM.

      A. The Trial Court's Opinion.

      In her opinion, the judge discussed the methods that Urbach and Gunteski

employed to value HM. Urbach testified that in the business-valuation industry,

there are three generally-accepted methods for valuing a business: the market

approach, the income approach, and the asset approach.

      Urbach used a variation on the asset approach to value HM, and he relied

primarily on HM's partnership tax returns as a basis for his analysis. Urbach did

not, however, perform a forensic examination of HM's books and records to

verify the accuracy of the information in the returns. He explained that his

retainer agreement with the court did not include such an examination.




                                                                         A-2453-16T1
                                       9
      Gunteski chose the income approach for his analysis. He explained that

he did so because HM was still in business on the valuation date, and at that

time, defendant and his partner were committed to continuing its operation.

Gunteski testified that he rejected the asset approach because he had misgivings

about the information that defendant had provided. He stated that the asset

approach ignored the income that the business was still generating. Gunteski

further testified that the use of the book values from a business's tax returns does

not reflect the fair value of those assets.

      The judge noted that Gunteski had "performed some forensic work," as

part of his valuation analysis. He had examined both sets of HM's books and

attempted to verify entries therein using records of capital accounts and other

documents that defendant and his partner had produced in discovery. The judge

found that Gunteski based his analysis on more sources than Urbach and had "a

better chance at determining more accurate numbers."

       The judge stated that Gunteski's report was "more in line with

methodologies for business valuations [which are] accepted as reliable within

[the] industry." The judge also stated that Gunteski did not advocate for plaintiff

or "draw inferences adverse to [defendant]" when performing his analysis. The




                                                                            A-2453-16T1
                                        10
judge noted that Gunteski "simply worked around the gaps in [the] ledgers and

account statements."

      The judge found Gunteski's use of the income approach, which took into

consideration that HM was still operating when the complaint was filed,

"comport[ed] more with the facts" than Urbach's opinion that the company was

"dead" at that time. The judge credited Gunteski's observation that HM was

earning income on the valuation date, and noted that Urbach's valuation

methodology could not take this factor into account.        The judge accepted

Gunteski's opinion that defendant's ownership interest in HM had a value of

$149,000 on the valuation date.

      The judge then addressed the equitable distribution of HM. She found

that she was bound by her prior analysis of the factors in N.J.S.A. 34:23-1, "with

the exception of the findings on dissipation of marital assets and debt," which

this court had "specifically vacated and directed this court to address." The

judge noted that the assets distributed to plaintiff had yielded $11.5 million

instead of the $5 million previously anticipated.

      The judge also noted that the equitable distribution of the parties' real

estate ordered by the FJOD "favored [plaintiff] by a factor of two to one," and

this had been based in part upon defendant's failure to account for $8.8 million


                                                                          A-2453-16T1
                                       11
in marital funds. The judge found that the value of defendant's interest in HM

was "small" by "comparison to the other assets equitably distributed," and the

distribution of HM had no "appreciable impact" on the overall equitable

distribution scheme established in the FJOD.

      In addition, the judge addressed HM's debt, which consisted of the

obligation to repay loans from PNC Bank for the purchase of aircraft. The judge

stated that to the extent that the company's $37,315,604 pre-complaint debt was

"a debt apart from the value of HM," it was subject to distribution. The judge

found, however, that Gunteski had taken HM's debt into account in his valuation

of the company.

      The judge pointed out that HM's value would have been "substantially

greater" if Gunteski had not factored the debt in his analysis. The judge also

pointed out that PNC Bank brought suit to enforce payment of the debt, which

defendant and his partner had personally guaranteed. The bank had offered to

settle the matter for a small fraction of the debt, but defendant and his partner

had not accepted that offer.

      The judge then summarized her findings on the equitable distribution of

HM, noting that certain facts carried weight in her analysis:

            The first fact is the minimal value of HM in the entire
            equitable distribution scheme in this case. The second

                                                                         A-2453-16T1
                                      12
            is that the value of HM is a paper value only, as HM
            ceased to operate in late 2010 or early 2011. The third
            is [defendant's] personal guarantee of the aircraft debt
            which, although it was incorporated into the value of
            HM, survives HM's demise and is almost as large as the
            entire marital estate at the time of trial. The fourth is
            the willingness of PNC Bank to come to a compromise
            resolution of the aircraft debt lawsuit. The fifth
            consideration is that [defendant] now has a job and
            salary as the CEO of a company that has the potential,
            in his words, to make him a lot of money. This fact
            mitigates the weight of [defendant's] potential liability
            for the enormous PNC debt. The final fact is
            [plaintiff's] successful liquidation of the four
            substantial real properties, resulting in her receiving
            $11 million in cash from the marital estate. Taking
            these facts and circumstances into account, along with
            the other considerations identified in the court's first
            trial opinion, the court distributes HM, LLC, including
            the PNC debt, entirely to [defendant].

      B. Scope of Review.

      The scope of our review of the trial court's findings of fact is "limited."

Cesare v. Cesare, 154 N.J. 394, 411 (1998). An appellate court should not

disturb such findings unless they "are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co.,

65 N.J. 474, 484 (1974).

      Furthermore, our deference to the trial court's fact-finding is "especially

appropriate 'when the evidence is largely testimonial and involves questions of

                                                                         A-2453-16T1
                                      13
credibility.'" Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to

J.W.D., 149 N.J. 108, 117 (1997)). Deference is warranted because a trial court

"hears the case, sees and observes the witnesses, [and] hears them testify," Gallo

v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). Therefore, the trial court "has a

better perspective than a reviewing court in evaluating the veracity of

witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988).

      We also accord deference to fact-finding by the Family Part because of its

"special jurisdiction and expertise in family matters." Cesare, 154 N.J. at 413.

However, "[a] trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference."

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      C. Defendant's Arguments.

      1. Remand Instructions.

      Defendant argues that the trial judge did not comply with our remand

instructions. He asserts that in our previous opinion, we ordered the trial court

to address all claims related to the distribution of HM, and to determine whether

the decisions on those claims required changes to other provisions of the FJOD.

      Defendant contends the trial court's decision regarding HM "changed

equitable distribution materially" by "tens of millions of dollars [.]" He also


                                                                          A-2453-16T1
                                       14
contends the trial court erred by failing to find that no changes in the FJOD were

required and the resulting distribution is fair and equitable.

      We are convinced, however, that the trial court fully complied with our

remand instructions and made all required findings of fact. In our opinion, we

stated that if further fact-finding beyond the valuation and distribution of HM

was "warranted," the court could change other provisions of the FJOD

accordingly. Carr, No. A-5558-10, at 54. We did not require the trial court to

make such changes.

      We are convinced that the judge's findings regarding HM did not require

any other changes to the overall scheme of equitable distribution established by

the FJOD. As noted, the judge found that the value of defendant's interest in

HM represented a relatively small percentage of the marital estate and that it

would have "no appreciable impact" on equitable distribution scheme as a

whole. Moreover, the record shows that PNC Bank is willing to compromise on

HM's debt.

      2. Alleged Need For Other Specific Findings.

      Defendant argues that the trial judge erred by failing to make specific

findings regarding the marital funds that were not accounted for, and the value

of assets previously distributed to plaintiff. In her opinion, the judge stated that


                                                                            A-2453-16T1
                                        15
the amount of the unaccounted-for funds was about $7.5 million, rather than

$8.8 million as initially thought. The judge also noted that plaintiff had received

$11.5 million from the sale of four properties distributed to her, rather than the

anticipated $5 million. As stated previously, the judge found for the reasons

stated in her opinion that the distribution of defendant's interest in HM and its

debt did not warrant a change in the overall scheme of equitable distribution .

      We are convinced the trial court was not required to make more specific

findings regarding the unaccounted-for monies, or the value of the assets

distributed to plaintiff. Defendant's arguments on this point lack sufficient merit

to warrant further discussion. R. 2:11-3(e)(1)(E).

      3. Acceptance of Gunteski's Opinion on HM's Valuation.

      Defendant argues that the judge erred by accepting Gunteski's valuation

instead of Urbach's. He asserts the judge incorrectly found that Gunteski's

opinion was supported by a forensic examination of HM's books and tax returns.

According to defendant, Gunteski relied on "the very same HM tax returns" that

Urbach relied on for his analysis.

      Defendant further argues that Gunteski's opinion that HM was a "going

concern" on the valuation date was not based on credible evidence. He asserts

Gunteski did not consider that HM had almost $40 million in debt at that time.


                                                                           A-2453-16T1
                                       16
He maintains Urbach's opinion that HM had no value on the valuation date had

better factual support.    He also contends the judge should have rejected

Gunteski's opinion because Gunteski was "an advocate not an expert."

      It is well-established that "a factfinder may accept or reject expert

testimony in whole or in part." Slutsky v. Slutsky, 451 N.J. Super. 332, 357

(App. Div. 2017). Where expert opinions differ, the trial judge is free to decide

which opinion the judge finds more credible and better supported, and in doing

so, the judge "need not adopt the opinion of either expert in its entirety." Brown

v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002).

      The judge must weigh and evaluate "the evidence to reach whatever

conclusion may logically flow from the aspects of testimony the court accepts."

Slutsky, 451 N.J. Super. at 357. An expert's opinion is "entitled to no greater

weight than the facts and reasoning upon which it is based." Todd v. Sheridan,

268 N.J. Super. 387, 401 (App. Div. 1993).

      Significantly, the valuation of businesses, particularly closely-held, small

businesses, is "not an exact science," and in many cases "there is no right

answer." Balsamides v. Protameen Chems., 160 N.J. 352, 368 (1999). A case-

by-case analysis is required, "with sensitivity and adjustment for the particular




                                                                          A-2453-16T1
                                       17
circumstances and the flexibility to deal with extraordinary circumstances."

Brown, 348 N.J. Super. at 477.

      In determining the value of a business, a court may accept the testimony

of an expert who has utilized "any techniques or methods which are generally

acceptable in the financial community and otherwise admissible in court."

Balsamides, 160 N.J. at 375. Here, the market and income approaches used by

Urbach and Gunteski are among the methods that have been recognized as

acceptable. Id. at 363-66; Brown, 348 N.J. Super. at 478-79.

      Notwithstanding defendant's arguments to the contrary, we are convinced

the evidence supports the trial court's finding that Gunteski's analysis was more

persuasive and convincing than Urbach's analysis.        The judge found that

Gunteski's valuation was more in line with "methodologies for business

valuations accepted as reliable within the industry."

      She observed that Gunteski had based his analysis on numerous sources

of information. He reviewed available underlying records, which allowed him

to make a more accurate valuation than he would have made if he relied on the

business's tax returns, as Urbach had done.

      In addition, the judge commented that Gunteski's approach "avoided pure

speculation" about monies going in and coming out of HM. She stated that


                                                                         A-2453-16T1
                                      18
Gunteski "avoided the pitfall of frequent advocacy which marred the HM

valuation at the original trial." She also stated it was significant Gunteski "took

a factually supported, conservative approach to selecting variables for the

capitalization rate. His selections did not smack of advocacy, but rather aided

the court in arriving at a decision that the court is confident is reasonable and

fair."

         We therefore reject defendant's contention that the judge erred by

accepting Gunteski's analysis and opinion as to the value of HM. The record

fully supports the judge's findings and conclusion that Gunteski's valuation was

more thorough, better supported, and more accurate than Urbach's valuation.

         4. Distribution of HM's Debt.

         Defendant argues that the trial court erred by failing to distribute HM's

debt equally between the parties. As stated previously, the judge found that

because Gunteski's valuation of HM took its debt into account, HM's debt would

be distributed along with defendant's interest in the company.

         Defendant asserts Gunteski testified that he ignored the debt in his

valuation approach, but the record does not support defendant's assertion. At

trial, Gunteski testified that "in an income approach, the assets and liabilities are




                                                                             A-2453-16T1
                                         19
embedded in the valuation." He agreed that the valuation reflects the existence

of that debt.

      Defendant also argues that plaintiff should be responsible for half of HM's

debt because she benefitted by using HM's aircraft for various trips, including

trips she took after she filed for divorce. We disagree.

      The judge reasonably found that HM's entire debt should be distributed to

defendant, along with his interest in the company, and, as will be discussed later

in this opinion, the judge provided defendant a credit for plaintiff's use of the

aircraft. Although plaintiff made limited use of the aircraft, this did not require

the judge to order plaintiff to assume responsibility for part of HM's debt.

      We conclude the trial court did not err in its valuation and equitable

distribution of HM and its debt.

                                        V.

      We next consider the arguments the parties have raised regarding the trial

court's decision on defendant's dissipation of marital assets.

       We note initially that N.J.S.A. 2A:34-23.1(i) requires that when a court

equitably distributes marital assets, it should consider, among other things,

contributions of each party to the dissipation of marital property. The statute

does not define "dissipation," and "the concept is a plastic one, suited to fit the


                                                                           A-2453-16T1
                                       20
demands of the individual case." Kothari v. Kothari, 255 N.J. Super. 500, 506

(App. Div. 1992).

      A court may find dissipation where one spouse "'uses marital property for

his or her own benefit and for a purpose unrelated to the marriage at a time when

the marriage relationship was in serious jeopardy.'" Ibid. (quoting Head v. Head,

523 N.E.2d 17, 20-21 (Ill. App. 1988)). When determining whether a spouse's

action constituted dissipation, courts have considered "a variety of factors,"

which include whether an expenditure was typical of those made by the parties

prior to the breakdown of the marriage; whether it benefited the joint marital

enterprise or was for only one spouse's benefit; and the need for and amount of

the expenditure. Id. at 507.

      Courts have also considered "whether the assets were expended by one

spouse with the intent of diminishing the other spouse's share in the marital

estate." Ibid. Because the dissipation analysis is fact-sensitive, a trial court's

decision on this issue should only be reversed if shown to be an abuse of

discretion. Id. at 506.

      A. The Trial Court's Opinion.

      Here, the trial judge found that after plaintiff filed her complaint, she

obtained court orders requiring that certain liquid marital assets and the proceeds


                                                                           A-2453-16T1
                                       21
from the sales of other marital assets be deposited in the Kovacs Trust Account

(KTA). The court later authorized defendant to withdraw monies from the KTA

as advances on his share of the equitable distribution.

      The judge found that defendant's own analysis showed that he spent

$5,658,265 in marital funds on HM post-complaint. In addition, defendant's

testimony and exhibits established that defendant deposited $385,465 and

$1,452,427 into his accounts after the advances from the KTA, and then spent

these monies on HM.       The judge subtracted these amounts from the total

defendant spent on HM during the relevant period, and determined that the

remainder, $3,820,373, "represent[ed] potential dissipation of marital assets."

      The judge then considered when defendant should have known that HM

was not viable and that spending marital funds on HM would be an untenable

business judgment constituting dissipation. The judge noted that NextFlight

Aviation, LLC, defendant's business that charted aircraft for HM, was sold in

May 2007, and by the end of that year, defendant sought $2 million from the

KTA for HM.

      The judge found that although this disbursement was defendant's money

and not marital funds, "the fact that HM could not hold its own in the aircraft

chartering and trading business should have been plain" to him by that point.


                                                                         A-2453-16T1
                                      22
Therefore, the judge found any marital funds defendant spent on HM after

January 1, 2008, were dissipated funds.

      Based on defendant's testimony and exhibits, the judge found that

defendant spent a total of $524,868 of marital funds on HM during that time

period. The judge awarded plaintiff sixty percent of these dissipated funds. The

judge further found that defendant was entitled to a credit of $71,156 against

plaintiff's share for the cost to HM of her use of aircraft during the litigation.

After this adjustment, the judge ordered defendant to pay plaintiff the remaining

$243,764 within two years.

      B. Defendant's Arguments.

      On appeal, defendant argues the trial court erred by finding he dissipated

martial assets because plaintiff never produced an expert to support her

dissipation claim. Here, however, Gunteski addressed plaintiff's dissipation

claim in his testimony.

      Defendant also argues the trial court erred by using January 1, 2008, as

the starting point for dissipation.    He contends that finding was "legally

contradicted" by the court's adoption of Gunteski's valuation of HM because

Gunteski testified that HM could have been "a saleable business" as late as 2012.




                                                                          A-2453-16T1
                                       23
      As we have explained, however, the trial court was free to accept or reject

all or a part of Gunteski's testimony. Slutsky, 451 N.J. Super. at 357. There is

sufficient credible evidence in the record to support the judge's finding that as

of January 1, 2008, defendant should have known that HM was no longer a

viable business and the use of marital funds on HM after that date constituted

the dissipation of marital assets.

      Defendant further argues that the court had permitted the release of funds

to him from the KTA in 2009 so he "could run his business and generate

income." He asserts that the record shows this "business" was HM. He therefore

contends his expenditures were not dissipation.

      The record shows, however, that the authorized disbursements from the

KTA were advances of defendant's share of equitable distribution.            Those

disbursements allowed defendant to use his own money on the business. The

court did not authorize defendant to spend any other monies, including marital

funds, for that purpose.

      Defendant also contends the trial court should have barred plaintiff from

asserting a dissipation claim because at times she used HM's aircraft. The court

found that plaintiff's use of HM's assets for personal vacations in the early post -

complaint period "clouded" her dissipation claim, but this did not warrant


                                                                            A-2453-16T1
                                        24
rejection of plaintiff's dissipation claim in its entirety. The court reasonably

elected to give defendant a credit for plaintiff's use of the aircraft in the post-

complaint period.

      In addition, defendant contends the trial court erred by finding that he

dissipated $524,868 in marital funds. He asserts the court took into account

withdrawals from certain accounts during the relevant time period, but failed to

give him credit for a $400,000 deposit he made into his Citigroup Smith Barney

Account. We disagree.

      Defendant submitted a list to the trial court, in which he states that he

made withdrawals totaling $3,479,443.18 from his Citigroup account between

June 20, 2006, and March 1, 2008. The list shows a withdrawal of $194,188.82

on March 1, 2008.

      The trial court accepted defendant's list and concluded that the

$3,479,443.18 withdrawn from the Citigroup account were marital funds that

defendant spent on HM. The judge included the $194,188.82 in the $524,868,

which the judge found were dissipated martial funds.

      While the list also indicates defendant deposited $400,000 into the

Citigroup account on February 1, 2008, defendant did not present any evidence

to show that the $194,188.82 withdrawn from the account was anything other


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                                       25
than marital funds.    Indeed, defendant testified at trial that all the money

withdrawn from the Citigroup account was marital money. The judge did not

err by failing to consider the deposit in her analysis.

      Defendant also contends the court erred by reducing its finding of

unaccounted funds from $8.8 million to $7.5 million rather than a lower number.

Defendant contends the $8.8 million should have been reduced by the

$5,658,265 he spent on HM. The argument is meritless. The judge reduced the

$8.8 million by deducting the monies advanced to defendant from the KTA. A

further reduction was not warranted.

      C. Plaintiff's Arguments.

      In her cross-appeal, plaintiff argues that because the trial court found that

defendant spent $3,820,373 in marital funds on HM post-complaint, it erred by

not awarding her fifty percent of that amount.

      Plaintiff asserts a reasonable person would have realized that HM was a

failing business in April 2006 when the complaint was filed. She therefore

contends the court erred by basing its award to her on the amount defendant

spent on HM beginning in January 2008.

      We disagree with plaintiff's argument.       We are convinced the record

supports the court's determination that dissipation did not occur until after


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                                        26
January 1, 2008, which was when defendant should have known that HM was

not a viable business.

      In support of her argument, plaintiff relies upon Goldman v. Goldman,

265 N.J. Super. 452 (App. Div. 1994). In that case, the husband used several

hundred thousand dollars in marital funds to meet "critical cash shortages" of

his failing automobile business post-divorce complaint. Id. at 456-57. We

affirmed the trial court's finding that this did not constitute dissipation because

the husband spent the monies in a good faith effort to preserve a marital asset

for the benefit of both parties. Id. at 457-58.

      We stated, however, that our decision was based on "the particular

situation presented," and "should not be construed as permission for one spouse

to use marital funds as venture capital with impunity." Id. at 457. We noted

that the wife had stipulated that her husband had not acted in bad faith, and she

had presented no evidence showing that the amounts spent were unreasonable

or that the business ultimately failed due to the husband's poor business

judgment. Id. at 457-58.

      Here, the judge explained that this case presented "even more unique

circumstances" than those in Goldman.         As we have explained, the judge

awarded plaintiff sixty percent of the dissipated monies, and determined that the


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                                       27
monies were not dissipated until defendant should have known HM was no

longer a viable business. Goldman does not preclude that result.

      We conclude there is sufficient credible evidence in the record to support

the trial court's finding that defendant dissipated $524,868 in marital funds. We

also conclude that the court did not abuse its discretion by awarding plaintiff

sixty percent of that amount, with a credit to defendant of $71,156 for plaintiff's

use of HM's aircraft.

                                        VI.

      We turn to defendant's argument that the trial court erred by denying his

motion to terminate alimony. Defendant contends the court failed to make the

required findings of fact for its decision.

      A court has the equitable power to issue alimony orders following a

judgment of divorce and to revise these orders as circumstances require. Crews

v. Crews, 164 N.J. 11, 23 (2000). A trial court's alimony decision should not

be set aside on appeal unless the court "clearly abused its discretion," did not

consider controlling legal principles, made mistaken findings, or reached an

unreasonable conclusion unsupported by the record as a whole. J.E.V. v. K.V.,

426 N.J. Super. 475, 485 (App. Div. 2012).




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                                        28
      N.J.S.A. 2A:34-23(b) provides that in any divorce action a court may

award alimony. When doing so, the court must consider the factors enumerated

in N.J.S.A. 2A:34-23(c) and "make specific written findings of fact and

conclusions of law on the reasons" and "evidence" for its decision to award

alimony. N.J.S.A. 2A:34-23(b). The court also may consider "any other factors

which [it] may deem relevant." Ibid.

      In her opinion, the judge addressed defendant's assertions of changed

circumstances in detail. Defendant's W-2 forms supported the judge's finding

that in 2014 and 2015, he earned more than the $380,000 imputed to him in the

FJOD. Defendant's testimony also supported the finding that in 2016, he was

making an amount reasonably close to $380,000 at Bay Microsystems.

      Moreover, the court based its imputation of investment income to

defendant on the amount he could earn by investing a portion of the $7,541,735

in funds that had not been accounted for. Defendant argues that in reaching that

conclusion, the court ignored his case information statement (CIS), which he

claims shows he does not have assets that could earn him the amount of

investment income imputed to him. We are convinced, however, that the judge

did not err by imputing investment income to defendant of $108,727.




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                                       29
      Defendant also contends the judge erred when she calculated the

investment income imputed to plaintiff.         In calculating plaintiff's imputed

investment income, the court used the same rate of return that it used in the

FJOD, that is 2.5%. Therefore, defendant's assertion that the court used a 2.25%

rate is incorrect. The judge imputed $108,727 in investment income to plaintiff,

which is 2.5% of $4,349,093, the amount of plaintiff's liquid assets set forth in

her CIS.

      Defendant further argues that the judge erred by failing to impute

investment income to plaintiff based on the $11.5 million she received in

equitable distribution. Again, we disagree. The judge did not include the full

value of these assets in her calculation because those monies were not available

to plaintiff for investment at the time of the trial.

      In addition, defendant contends the judge erred in her findings regarding

the parties' lifestyles. We disagree. The record shows that defendant's monthly

expenses are greater than plaintiff's, but this did not preclude the court from

finding that he leads a superior lifestyle. Defendant also contends the judge

erred by finding plaintiff has a "reduced lifestyle" post-divorce. However, the

judge's finding is supported by sufficient credible evidence in the record.




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                                         30
      We therefore conclude the judge did not err by denying defendant's motion

to reduce or terminate alimony. The judge made the required findings of fact,

and her findings are supported by sufficient credible evidence in the record.

                                       VII.

      Defendant contends the trial court erred by denying his motion to reopen

the judgment and supplement the record. Again, we disagree.

      A court may grant a motion to reopen the judgment when it appears the

new evidence the movant proffers "would probably have changed the result, that

it was unobtainable by the exercise of due diligence for use at the trial, and that

[it is] not merely cumulative." Quick Chek Food Stores v. Springfield, 83 N.J.

438, 445 (1980). "A trial court's determination not to reopen a judgment and

take additional testimony is not to be disturbed except for a clear abuse" of its

"broad judicial discretion." Ibid.

      Here, defendant sought to reopen the judgment to present evidence that

shortly after the second trial, plaintiff decided to join the Trump National Golf

Club (TNGC) in Bedminster. He asserted that plaintiff paid $125,000 to join

the club and thereafter would be responsible for annual dues and fees that could

exceed $20,000.




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                                       31
      In her decision after the second trial, the judge compared the lifestyles of

the parties, and noted that defendant had continued to maintain a lifestyle that is

indicative of a person of wealth. Among other things, defendant had continued

his membership in the TNGC for himself and his new spouse, and for parties for

A.C. The judge further found plaintiff had chosen to reduce her spending and

that her lifestyle was "far below" defendant's lifestyle. The judge noted that at

the time of the second trial, plaintiff was no longer a member of the TNGC.

      On appeal, defendant argues that plaintiff's later decision to rejoin TNGC

was evidence her lifestyle was comparable to his, and the court should have

reopened the judgment to allow him to present that evidence. We are convinced,

however, that the trial court did not err by denying defendant's motion to reopen

the judgment and supplement the record. Defendant failed to show that the

evidence regarding plaintiff's membership in the TNGC would have changed the

result of the court's decision on his alimony motion.

                                       VIII.

      We next consider defendant's arguments regarding attorneys' fees. As

noted, after the first trial, the judge awarded plaintiff $300,000. After the second

trial, the judge awarded plaintiff $50,000.




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      Rule 5:3-5 provides that in a divorce action or an action involving

equitable distribution or alimony, a court may, in its discretion, award attorney

fees to any party. To determine the amount of the fee award, the court "should

consider" the following factors:

            (1) the financial circumstances of the parties; (2) the
            ability of the parties to pay their own fees or to
            contribute to the fees of the other party; (3) the
            reasonableness and good faith of the positions
            advanced by the parties both during and prior to trial;
            (4) the extent of the fees incurred by both parties; (5)
            any fees previously awarded; (6) the amount of fees
            previously paid to counsel by each party; (7) the results
            obtained; (8) the degree to which fees were incurred to
            enforce existing orders or to compel discovery; and (9)
            any other factor bearing on the fairness of an award.

            [Ibid.]

      A trial court's award of counsel fees "is discretionary, and will not be

reversed except upon a showing of abuse of discretion." Barr v. Barr, 418 N.J.

Super. 18, 46 (App. Div. 2011). As a result, an award of counsel fees will be

disturbed only on rare occasions, Strahan, 402 N.J. Super. at 317, and only when

"a decision is 'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v.

Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).


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                                      33
        A. Our Prior Opinion.

        In our opinion on the appeals from the FJOD, we stated that we "[did] not

find the judge's award of fees to necessarily be an abuse of discretion" and that

"the bulk of the judge's fee opinion [was] without error." Carr, No. A-5558-10,

at 38. We stated, however, that it is "troubling" that the trial court appeared to

have assessed fees against defendant in part because he was self-represented.

Ibid.

        We observed that self-represented litigants "often choose that path to

avoid legal fees," and opined that to make such individuals pay the fees of an

opposing party merely because they did not incur fees themselves was "unfair."

Ibid. We noted that in many cases pro se litigants "pose challenges to the other

party and the court, and frequently make the trial longer and more complicated."

Ibid.    Nevertheless, we found that allowing self-represented parties to be

assessed fees based on their inexperience could potentially penalize every such

litigant. Id. at 38-39.

        We concluded that it is inappropriate to consider self-representation as a

factor in the counsel fee analysis "unless the litigant utilizes his self -

representation as a sword to unreasonably prolong the litigation, and thereby to

inflict fees upon the other party." Id. at 39. We observed that in this case, the


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                                        34
trial judge had not given specific examples of this type of conduct or explained

how she determined $300,000 would compensate plaintiff for any wasted time.

Id. at 39-40.

      Accordingly, we remanded the matter and directed the trial court to

provide "a fuller explanation of the basis of her counsel fee determination,"

including how the court weighed defendant's self-representation and whether

plaintiff's counsel fees would have been less if defendant had been represented

by an attorney. Ibid.

      B. Decision on Fees For the First Trial.

      On remand, the judge acknowledged she had placed "substantial weight"

on the fact that defendant had represented himself at trial. She explained that

all of the other factors under Rule 5:3-5 "pretty much balanced each other," but

factor four, the extent of fees incurred by both parties, had "swayed [her] to

conclude that there should be a modest counsel fee award" to plaintiff .

      The judge stated that since both parties were represented by counsel

during the third-party litigation, defendant could be entitled to an award of

attorneys' fees related to that part of the litigation. The judge did not quantify

what such an award would be, but stated that she "took that into account as a

factor in considering the overall counsel fee award" for the entire case. She


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                                       35
indicated that in determining the award, she began with a calculation that

plaintiff paid $1,330,409 more in fees than defendant paid.

      The judge found that defendant should be responsible for $665,000,

approximately half that amount. The judge decided, however, that because the

third-party litigation had "no basis in New Jersey [l]aw," defendant should not

be required to pay the entire $665,000. Moreover, the judge noted that defendant

"probably ha[d] more cash assets than [plaintiff] and a higher earning capacity."

      The judge reiterated her findings on each of the Rule 5:3-5 factors,

observing once more that while plaintiff's positions on some issues were

unreasonable, defendant was "obstructionist at almost every point of discovery,"

thereby prolonging the proceeding and forcing plaintiff to incur more counsel

and expert fees than she would have incurred if he had cooperated from the start.

The judge found that the award of $300,000 to plaintiff was fair and equitable.

      C. Decision Regarding Fees For the Second Trial.

      Following the second trial, plaintiff sought another $446,075.70 in

attorneys' fees. The court again considered the factors in Rule 5:3-5. The judge

found the issues presented in the second trial were complex and required

plaintiff's attorney to work exclusively on this case, due to the volume of

discovery and difficulty in obtaining documents and evidence.


                                                                         A-2453-16T1
                                      36
      The judge further found the rates charged by plaintiff's attorneys were in

line with those of attorneys with comparable experience and reputation; that the

time spent on the case was reasonable; and that the fees were properly charged

on the basis of time spent, with hourly timekeeping.

      The judge also noted that plaintiff had been awarded $300,000 in counsel

fees for the first trial and had paid her attorneys more than $4 million during the

ten years of this litigation. The judge noted defendant had paid attorneys

approximately $1 million before he decided to represent himself.

      In addition, the judge found the parties each had the ability to pay their

own counsel fees. The judge added that plaintiff was "entirely unreasonable in

her position that the parties should go to trial on the issue of valuation and

equitable distribution of HM," because based on her own expert's report, the

value of the business was "far less than what she was billed" in either expert or

counsel fees to litigate the matter.

      The judge found, however, that defendant behaved in "naïve if not

obstructionist" ways during the proceedings. He had been "secretive" about

discovery and insisted that neither expert had correctly valued the business. The

judge characterized some of defendant's positions as "obtuse," and stated that he

"repeatedly [sought] the same relief."


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                                         37
          The judge also noted that defendant's position regarding alimony was

"particularly indefensible" and his arguments regarding his life insurance

policies were "ridiculous" and made "in bad faith." Based on her consideration

of all relevant factors, the judge awarded plaintiff $50,000 in attorneys ' fees.

          D. Defendant's Arguments.

          On appeal, defendant argues that the trial court erred by reaffirming the

award of counsel fees to plaintiff for the first trial because he chose to represent

himself in that proceeding. He contends he should not be required to pay

plaintiff's counsel fees because she was equally responsible for prolonging the

litigation. He also contends the trial court failed to make certain findings, which

he claims were required to support the decisions awarding plaintiff fees for both

trials.

          We are convinced, however, that the judge did not err by reaffirming the

award for the first trial and awarding plaintiff counsel fees for the second trial.

In both her remand opinion regarding the original fee award and her decision on

the award of fees for the second trial, the judge addressed all of the Rule 5:3-5

factors in appropriate detail.

          The judge did not base her $300,000 award for the first trial on defendant's

self-representation.      In her decision on remand, the judge referred to self-


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                                          38
representation, but this was only to explain that she had based her initial decision

in part on this factor. The judge relied upon other, appropriate considerations

and factors, in her decision on remand.

      Defendant further argues that we should exercise original jurisdiction and

award him $529,359 for attorney's fees he incurred in the third-party litigation.

However, the record shows that the trial judge considered this expenditure when

making her decision. Accordingly, there is no basis for the exercise of our

original jurisdiction or further consideration of this claim.

                                        IX.

      Defendant challenges the trial court's decisions on tuition for A.C., his

obligation to maintain life insurance, and certain monies seized by the Somerset

County Probation Department (SCPD). We address each in turn.

      A. Tuition for A.C.

      Defendant contends the trial court abused its discretion by making him

solely responsible for A.C.'s private school tuition. He argues that the parties

should be equally responsible for these costs.

      In the FJOD, the court awarded plaintiff $500 per month for child support.

The judge ordered that defendant would be responsible for A.C.'s private school

tuition and plaintiff responsible for her tutors, uniforms, equipment, and books.


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                                        39
      At a hearing on June 30, 2014, the judge explained that in the FJOD, she

had divided these costs between the parties because plaintiff had greater control

over A.C.'s tutoring, school equipment, and clothing, and had made decisions

about these matters during the marriage. The judge also stated that she had

"estimated roughly that these expenses allocated to [plaintiff] would average out

over time to approximate the tuition expense that [defendant was] paying."

      During the second trial, plaintiff testified that A.C. was attending a private

school for children with learning and psychological disabilities. Defendant

stated the parties had agreed to A.C.'s enrollment in the school, which he found.

Plaintiff stated A.C. would likely remain at this school through twelfth grade.

      We are convinced the trial court did not abuse its discretion by ordering

defendant to pay A.C.'s tuition costs, as provided in the FJOD. Defendant

admitted during the second trial that currently, the child's school actually costs

him nothing, and he agreed it is in A.C.'s best interests to attend this school.

The record also shows that since defendant has greater income than plaintiff, he

is better able to pay for tuition expenses should any arise in the future.

      Moreover, plaintiff continues to be responsible for A.C.'s expenses for

tutors, uniforms, and other school-related items, and plaintiff testified that the




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                                       40
child's tutoring needs are significant and ongoing. We conclude the trial court's

decision on the child's tuition costs was not a mistaken exercise of discretion.

      B. Life Insurance.

      Next, defendant argues that the trial court erred by ordering him to

maintain a life insurance policy naming plaintiff and A.C. as beneficiaries with

a death benefit sufficient to cover full payment of his alimony and child support

obligations.

      The FJOD required defendant to maintain "his current life insurance

policy" with plaintiff named as beneficiary for seventy-five percent of the death

benefit, and A.C. named as beneficiary for the remaining twenty-five percent.

The record shows that during the marriage, defendant worked for Simpler

Networks (SN), which purchased a $6 million life insurance policy with SN

named as the beneficiary.

      When defendant left SN, he maintained the policy and was able to name

his own beneficiaries. In April 2007, defendant's beneficiary designations were

seventy-five percent for A.C.'s trustee, and twenty-five percent for plaintiff. In

May 2009, the court ordered defendant to maintain his current life insurance

policy, and name plaintiff as the seventy-five percent beneficiary and A.C.'s

trust as the beneficiary for the remaining twenty-five percent.


                                                                          A-2453-16T1
                                       41
      After the trial court entered the FJOD in 2011, defendant did not name

plaintiff and A.C. as beneficiaries of the SN policy.       Moreover, in 2014,

defendant had SN transfer the policy. He named his new spouse as beneficiary

of seventy-five percent of the death benefit, with A.C.'s trust the beneficiary of

the remaining twenty-five percent.

      Defendant testified that he viewed the court's May 2009 order as applying

to his individual life insurance policy, which had a $300,000 death benefit.

However, the judge found this testimony was "too self-serving to be anything

but an intentional avoidance of the obligation to maintain [plaintiff] as a

beneficiary on [the] large policy."

      The judge found that defendant had never complied with the court's orders

on life insurance. She required defendant to obtain a life insurance policy

naming plaintiff and A.C. as beneficiaries in an amount sufficient to cover full

payment of his alimony and child support obligations. The judge found that

considering plaintiff's life expectancy, her expected alimony payout was

$2,724,000.

      In addition, the judge found defendant's anticipated child support

payments would total $902,667. The judge found that the insurance policy's

gross death benefit should cover $3,626,667, discounted to present value. The


                                                                          A-2453-16T1
                                       42
judge ordered the parties to make the appropriate calculations, and required

defendant to obtain a policy with the requisite death benefit.

      On appeal, defendant argues that the judge should not have permitted

plaintiff to raise a claim regarding life insurance in the second trial because she

did not raise the issue in the earlier appeal. The contention is patently without

merit. The FJOD ordered defendant to maintain his current life insurance policy,

and plaintiff had no reason to raise any issue as to life insurance in the appeal

from the FJOD.

      Defendant also argues that the judge "testified" when she made her

findings as to life insurance. In her opinion, the judge used a table in the

Lawyers Diary to determine the parties' life expectancies and to calculate

plaintiff's anticipated alimony award. The judge appropriately referred to these

tables in making her findings of fact. See Schell v. Schell, 212 N.J. Super. 649,

657-58 (Ch. Div. 1986) (referencing Table of Life Expectancy in the Lawyers

Diary and Manual).

      Defendant further argues that the judge's decision on insurance was not

based on sufficient credible evidence in the record. We disagree. The record

supports the judge's finding that the life insurance policy referred to in the FJOD

was the SN policy. Indeed, that was the only policy discussed during the first


                                                                           A-2453-16T1
                                       43
trial. The judge did not err by ordering defendant to continue to obtain and

maintain comparable insurance.

      Defendant also contends the court erred by finding his testimony

regarding the $300,000 insurance policy was not credible. Again, we disagree.

We see no reason to second-guess the judge's credibility finding.

      C. Seized Monies.

      Defendant argues that despite an order entered in July 2014, which stayed

enforcement of his financial obligations, the SCPD seized $17,397.25 in tax

refunds, which the SCPD turned over to plaintiff. He also asserts plaintiff

received an additional $21,000 from the SCPD despite orders staying

enforcement of these contentions.

      Defendant argues that this court should exercise its original jurisdiction,

vacate the requirement that he pay his obligations through SCPD, and require

plaintiff to return the seized funds.      We decline to exercise our original

jurisdiction to address this claim.

      We have considered defendant's other arguments and conclude they lack

sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

      Affirmed on the appeal and the cross-appeal.




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                                      44
