                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-5437-16T3

C.P.,

          Plaintiff-Respondent,

v.

M.A.P.,

     Defendant-Appellant.
__________________________

                    Argued May 13, 2019 – Decided August 1, 2019

                    Before Judges Messano and Fasciale.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Hunterdon County,
                    Docket No. FM-10-0282-08.

                    M.A.P., appellant, argued the cause pro se.

                    Michael Charles Cascio argued the                                  cause       for
                    respondent (C.P., on the pro se brief).

PER CURIAM

          Following thirty-three days of trial, the Family Part judge entered a dual

judgment of divorce that terminated the parties' twenty year marriage but did
not address issues of equitable distribution, child support for their daughter, O.P.

(Ophelia), born March 1998, and son, J.P. (Joseph), born October 1999, and

counsel fees.1    Ten months later in June 2017, after considering post-trial

submissions, the judge filed an amended dual final judgment of divorce (JOD),

along with a ninety-two page written opinion addressing these issues.

        As to equitable distribution, the JOD awarded the marital home to

plaintiff-wife, subject to the existing mortgage for which she was solely

responsible, ordered that defendant-husband would retain his pre-complaint

401K account that he had already liquidated during the litigation, and both

would retain "all of their post-[c]omplaint assets." Critically, the JOD provided:

                    Any other equitable distribution claims of the
              parties, including but not limited to, [d]efendant's law
              practice and [p]laintiff's tax credit business ownership
              interest are denied as without factual and/or legal basis.
              The [p]laintiff held no ownership interest in any
              business pre-[c]omplaint, and [d]efendant failed to
              produce [c]ourt ordered discovery as to his law practice
              necessary to value same.

        The JOD awarded plaintiff sole legal custody of Joseph, with parenting

time for defendant subject to his "initiation of reunification therapy" as ordered

by the court more than three years earlier. Although the JOD noted Ophelia was



1
    The record is sealed, so we use initials and pseudonyms.
                                                                            A-5437-16T3
                                          2
legally an adult, she was "not . . . deemed emancipated for purposes of child

support, college education expenses and other child-related expenses." The JOD

ordered defendant to pay child support of $2000 per month and generally

provided for both parties to share equally in expenses for extracurricular

activities and unreimbursed medical expenses for the children. The JOD also

required defendant and plaintiff to share equally the children's college education

expenses, commencing with Ophelia's fall 2016 semester.

      The JOD ordered defendant to pay plaintiff $125,000 in counsel fees and

expenses, and reduced that amount to judgment "[d]ue to . . . defendant's

extensive history of non-compliance with [c]ourt ordered obligations throughout

the history of the litigation." On the same day the court filed the JOD, it entered

an order denying defendant's motions made during trial to (1) move back to the

marital home, and (2) reconsider or stay several awards of counsel fees and

sanctions entered against him prior to trial (the June 2017 fee order).

      Defendant appeals.      He argues that we must reverse the equitable

distribution provisions of the JOD because the judge wrongfully denied

distribution of plaintiff's ownership interest in a business, which defendant

claims she acquired during the marriage "or . . . fraudulently deferred to deprive

[him] of that asset." Defendant contends the award of the marital home to


                                                                           A-5437-16T3
                                        3
plaintiff without any equitable distribution was "erroneous as a matter of law,"

and, in any event, he was entitled to equitable distribution of rental income

plaintiff received while leasing the marital home.

      Defendant argues the child support award was "based upon a patently

biased and false representation of the trial record" and violated the child support

Guidelines. He also argues that Ophelia was emancipated, and therefore his

support obligations have terminated. Defendant contends the fee awards in the

JOD and the June 2017 fee order are "unjustified, excessive and punitive."

Finally, defendant contends that we must vacate the JOD and June 2017 fee

order because they are products of the trial judge's bias and "collusive

relationship with counsel for plaintiff."

      We have considered these arguments in light of the voluminous record

and applicable legal principles. We affirm.

                                        I.

      The trial judge's written opinion summarized the trial testimony and

evidence at length, and we recount the judge's factual findings and conclusions

only as necessary to consider the legal arguments now raised.

      Plaintiff and defendant are attorneys, although plaintiff never actively

practiced and worked in "the specialized field [involving] the sale of tax credits


                                                                           A-5437-16T3
                                            4
. . . in the film and arts . . . industr[ies]." The judge found her to be "a very

credible witness" and found defendant was "not . . . a credible witness."       The

parties married in 1996 and lived in the marital home for approximately ten

years before plaintiff filed for divorce in 2007.         Plaintiff and defendant

continued to reside in the home after the complaint was filed until 2008, when

plaintiff obtained a temporary and then final restraining order that removed

defendant.

      Plaintiff lived with the children in the marital home until late summer

2013, when she moved to another home with her boyfriend. Plaintiff paid all

expenses, including the monthly payments on a mortgage balance of $249,836,

as of June 2015, and had reduced the mortgage principal by approximately

$36,000 to $37,000. The shelter expenses were offset partially by a tenant's

monthly rent of $2200. Neither party offered an appraisal of the home's value

at trial, but plaintiff provided an estimate during her testimony and, in an earlier

filed Case Information Statement (CIS), defendant estimated it was worth

$300,000.

      The judge found plaintiff was in the best position to value the home and

accepted her estimate of $390,000. He divided the $140,000 in equity in half,

and reduced defendant's share by one-half the reduction in principal plaintiff


                                                                            A-5437-16T3
                                         5
made through mortgage payments. The judge then gave plaintiff credit for one-

half of each joint marital credit card debt, home repairs, Ophelia's car insurance

payments, and Joseph's private school tuition costs. The judge gave plaintiff

credit for one-half of defendant's 401K.      As to the remaining $29,200 of

defendant's "50% putative equity share," the judge concluded it "shall be zeroed

out in consideration of the plethora of pre-trial legal fee awards entered against

[d]efendant which have not been paid."

      The judge found plaintiff's average income from 2012 to 2014 was

$226,000, and she anticipated making $240,000 in 2015. She was employed by

The Tax Transfer Corporation, LLC (Tax Transfer) prior to filing her divorce

complaint, after which she was employed by Tax Credits, LLC (Tax Credits),

which shared a common owner with Tax Transfer. When trial commenced in

2015, plaintiff was employed by Incentives Associates, LLC (Incentives), where

she was a one-third owner, and Tax Credits and Tax Transfer were out of

business.   Incentives was the United States representative of Tax Credits

International, a Puerto Rican company owned by plaintiff's boss at Tax Credits

and Tax Transfer. Incentives bought the Tax Credits name for a nominal price

in 2015 so that it could "continue with the brand" in New Jersey. Plaintiff




                                                                          A-5437-16T3
                                        6
testified that she was a W-2 employee of Tax Credits and had never been an

owner of either Tax Transfer or Tax Credits.

      The judge concluded that despite extensive cross-examination and "a

plethora of documents," defendant failed to show plaintiff had an ownership

interest in either company, and she was "a salaried-plus-bonus employee and

ha[d] worked solely as an employee during her marriage and post-[c]omplaint."

      As to defendant's financial circumstances, the judge noted that he had

failed to file a CIS after 2014 and "failed to comply with financial discovery,

including documentation pertaining to his law practice." The judge drew a

negative inference from defendant's "refusal to provide financial disco very or

provide meaningful testimony regarding his law practice, despite numerous "

court orders. He concluded that defendant had "intentionally sought to deprive

th[e c]ourt of complete financial documentation[.]"     Based on tax returns,

however, the judge found that defendant's average annual income during the

three-year period of 2012 to 2014 was $318,000, and the average during the

five-year period of 2010 to 2014 was $201,700. For purposes of setting child

support, the judge found that "the income of the parties exceed[ed] the maximum

income level under the . . . Guidelines," both were "equally capable of

contributing to the general support and education of the children and


                                                                       A-5437-16T3
                                      7
maintaining their lifestyle" and both children had "the ability and desire to

continue on to higher education."      He also found that the parties had not

established educational savings that would defray college expenses .

      In computing child support, relying upon the three-year average of

$226,000 annual income for plaintiff and the five-year average of $201,700

annual income for defendant, the judge set plaintiff's share at fifty-three percent

and defendant's at forty-seven percent. Considering the factors in N.J.S.A.

2A:34-23, and citing our decision in Jacoby v. Jacoby, 427 N.J. Super. 109, 113

(App. Div. 2012), the judge ordered defendant to pay $2000 per month in child

support.

      Because it relates to defendant's claim regarding Ophelia's emancipation,

we set forth the judge's relevant findings regarding defendant's relationship with

the children. At trial, the judge conducted in camera interviews with both

Ophelia and Joseph, and he heard pre-trial conversations with defendant

recorded by them. He considered as well plaintiff's expert and defendant's

expert witnesses, who expressed opposing views as to whether plaintiff fostered

the children's alienation and estrangement from their father. The judge rejected

defendant's claim of parental alienation and concluded defendant's "behavior . . .

harmed his children emotionally, and he [was] either unwilling or unable to


                                                                           A-5437-16T3
                                        8
eliminate that harm. The children are estranged from their father simply because

of his bad behavior."

       The judge concluded that defendant's "dilatory, deceptive, and bad-faith

litigation of th[e] case" warranted an award of counsel fees. He found that

defendant "initiated a 'scorched earth' strategy[,]" filing "numerous, duplicitous

applications, numerous appeals, refused to provide discovery, refused to abide

by [c]ourt [o]rders, and raised frivolous issues without legal or factual

justification." The judge noted plaintiff's "legal tactics and positions were well-

founded[,]" pursued "in good faith" and largely successful.          After detailing

defendant's conduct lengthening and complicating the matter and examining each of

the nine factors identified in Rule 5:3-5(c), the judge ordered defendant to pay

$125,000 in counsel fees.

      A written statement of reasons accompanied the June 2017 fee order,

which itself referenced prior awards of attorney's fees in orders dated June 16,

2015 ($2764.50); June 18, 2015 ($3075); June 19, 2015 ($7500); and July 1, 2015

($1500), together with underlying rulings that defendant had violated litigant's

rights. The judge concluded defendant failed to demonstrate he was entitled to

reconsideration of the prior orders under Rule 4:49-2, or relief under Rule 4:50-1.




                                                                             A-5437-16T3
                                         9
                                         II.

                                         A.

      "We review the Family Part judge's findings in accordance with a

deferential standard of review, recognizing the court's 'special jurisdiction and

expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83

(2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Thus, 'findings

by the trial court are binding on appeal when supported by adequate, substantial,

credible evidence.'" Id. at 283 (quoting Cesare, 154 N.J. at 411-12). We review

the judge's legal conclusions de novo. Ibid.

      "The Legislature has limited the property that is subject to equitable

distribution to 'property, both real and personal, which was legally and

beneficially acquired by [the parties] or either of them during the marriage or

civil union.'" Id. at 284 (quoting N.J.S.A. 2A:34-23(h)). "The goal of equitable

distribution . . . is to effect a fair and just division of marital assets." Steneken

v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004) (citing Rothman v.

Rothman, 65 N.J. 219, 228-29 (1974)), aff'd as mod., 183 N.J. 290 (2005).

Although a court shall consider the factors enumerated in N.J.S.A. 2A:34-23.1

in making an equitable distribution, "the manner of distribution . . . remains




                                                                             A-5437-16T3
                                        10
within the broad discretion of the trial court." Id. at 435 (citing Borodinsky v.

Borodinsky, 162 N.J. Super. 437, 443 (App. Div. 1978)).

      Defendant contends that the judge should have included plaintiff's alleged

ownership interests in Tax Credits as an asset subject to equitable distribution.

Actually, the argument is more appropriately that the judge abused his discretion

in not permitting a re-opening of discovery shortly before trial so defendant's

forensic financial expert could conduct a full examination of plaintiff's assertion

that she was not an owner.

      The parties sparred over the relevance and sufficiency of discovery on

plaintiff's alleged ownership interests as early as 2009. Defendant's expert

eventually identified twenty-three categories of documents he needed to inspect,

and, plaintiff's counsel later claimed to have provided all the relevant documents

in plaintiff's possession in January 2010.      Defendant never challenged the

adequacy of the document production again until a March 2015 case

management conference, after the judge ordered defendant to sit for his

deposition and produce financial data related to his law practice. Defendant had

no specific list of alleged deficiencies, but rather told the judge he could produce

one within ten days. It suffices to say that the exchanges between the judge and




                                                                            A-5437-16T3
                                        11
defendant grew more heated, before the judge declined to permit further

discovery on the issue.

      We will not intervene "but instead will defer to a trial judge's discovery

rulings absent an abuse of discretion or a judge's misunderstanding or

misapplication of the law." Capital Health Sys., Inc. v. Horizon Healthcare

Servs., Inc., 230 N.J. 73, 79-80 (2017) (citing Pomerantz Paper Corp. v. New

Cmty. Corp., 207 N.J. 344, 371 (2011)). We find no mistaken exercise of the

judge's discretion.

      Defendant argues the judge abused his discretion because he compelled

continued discovery from defendant but refused defendant the ability to reopen

discovery on this issue.    This overlooks, of course, that defendant sought

historical data to prove a past association which plaintiff claimed had already

been furnished, while the judge ordered defendant to produce current fina ncial

data relevant, if for no other reason, than to set a child support award. Defendant

argues the judge abused his discretion by barring defendant's expert from

testifying, but that overlooks the fact that the expert initially said in 2009 that

he could not render an opinion without additional information, and defendant

never claimed the discovery plaintiff provided thereafter was deficient.

Nevertheless, there was no expert report produced for trial.


                                                                           A-5437-16T3
                                       12
       Regarding the marital home, defendant contends the judge provided

plaintiff with "a complete windfall from any eventual sale[,]" and he received

nothing. However, the judge computed the equity in the home and credited

plaintiff with $37,000, the undisputed post-complaint reduction in mortgage

principal. He then awarded defendant one-half of the balance. Defendant was

not entitled to retain the home or retain an interest in it until it was sold; in

equitably distributing marital assets, a trial court is permitted to award a party

the "monetary equivalent" of a marital asset. Borodinsky, 162 N.J. Super. at

443.

       Defendant claims the offsets applied to reduce his balance in the home's

equity were "fabricated." However, there was sufficient credible evidence in

the record to support the judge's factual findings as to each and every offset.

Defendant's arguments to the contrary lack sufficient merit to warrant further

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

       We also reject defendant's argument that the judge erred as a matter of law

by accepting plaintiff's valuation of the marital home without requiring expert

testimony. Since defendant did not produce an expert himself, nor object to the

absence of an expert at trial, we consider the argument under the plain error

standard. R. 2:10-2.


                                                                          A-5437-16T3
                                       13
      Clearly, the trial court must decide "what specific property of each spouse

is eligible for distribution," determine the value of that property, and decide

upon the most equitable allocation between the parties. Genovese v. Genovese,

392 N.J. Super. 215, 225-26 (App. Div. 2007) (quoting Rothman, 65 N.J. at

232); see also M.G. v. S.M., 457 N.J. Super. 286, 295 (App. Div. 2018) (noting

the policies underlying equitable distribution are "best implemented by

evaluating the facts and evidence associated with each asset").          We have

cautioned trial courts against "fixing market value of real property without the

benefit of expert appraisal evidence." Jacobitti v. Jacobitti, 263 N.J. Super. 608,

613 (App. Div. 1993), aff'd, 135 N.J. 571 (1994).

      However, under the circumstances, we will not upset the judge's findings

and remand simply to have him revisit this issue after ordering an appraisal. See

ibid. ("[I]t would be an injustice to remand this matter for proof of the marital

dwelling's value where so little is at stake."). The lack of any appraisal is

partially defendant's fault; defendant's estimate was nearly $100,000 less than

plaintiff's, which, if accepted by the judge, would have actually reduced

defendant's equitable share; there is nothing in the record to suggest plaintiff's

estimate is so low that a remand "could substantially alter the market value fixed

by the trial court." Id. at 613-14.


                                                                           A-5437-16T3
                                       14
      Lastly, defendant argues he was "entitled to receive one-half of the net

income" from plaintiff's rental of the marital home, and belatedly contends

plaintiff lacked legal authority to rent the home without his consent. See, e.g.,

Cherry v. Cherry, 168 N.J. Super. 386, 390 (Law Div. 1979) ("The basic issue in

this case is whether Cherry, as tenant by the entirety, had the right to lease the

premises without the consent of Mrs. Cherry, the cotenant. I conclude that he could

not do so."). Cherry was not binding on the trial court, is not binding on us, and has

never been cited by any other state court in New Jersey.

      Moreover, even if the legal principle of the case is sound, defendant's remedy

would be to share the net income from the rental with plaintiff. Id. at 392 (holding

that Mrs. Cherry was "entitled to receive one-half of the net income from the

premises" as a remedy). However, there was no net income. The monthly rent

did not cover the monthly mortgage payments, insurance costs and repairs.

Plaintiff paid for every shortfall because defendant undisputedly failed to pay

for anything. Additionally, defendant sought to return to the home after the trial

started in 2015, even though he was aware the home was being rented before then.

We affirm the JOD's equitable distribution provisions.




                                                                              A-5437-16T3
                                        15
                                        B.

      Defendant contends the child support provisions of the JOD should be set

aside because they exceed the Guidelines, the judge used different time -frames

for averaging the parties' annual income, and defendant was "double-billed" for

Ophelia's support, since he was also required to pay for her college expenses.

We reject the arguments.

      The parties' income exceeded the current Guidelines. See Schedule of

Child Support Awards, Pressler & Verniero, Current N.J. Court Rules, Appendix

IX-F to R. 5:6A, www.gannlaw.com (2019). In such circumstances, trial courts

should apply the guidelines up to the maximum and then to make an additional

award, the amount of which should be determined by considering the factors

enumerated in N.J.S.A. 2A:34-23(a). Connell v. Connell, 313 N.J. Super. 426,

431 (App. Div. 1998). That is precisely what the judge did here.

      As for income averaging, defendant fails to note that he benefitted by the

judge's decision to use only plaintiff's earnings for the last three years prior to

trial. Had the judge used five, as he did for defendant, plaintiff's average would

have fallen, and the ratio between the two averages would have tilted in her

favor. In any event, while the judge failed to explain his rationale, we cannot




                                                                           A-5437-16T3
                                       16
conclude he mistakenly exercised his discretion. 2 Tannen v. Tannen, 416 N.J.

Super. 248, 278 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011).

      We have recognized that paying a child's college expenses does not

eliminate, or even necessarily reduce, expenses associated with that child's

ongoing primary residence. See Jacoby, 427 N.J. Super. at 121 (noting that

support awards can recognize the "continued need to maintain a local residence

for a child who returns home from college during school breaks and vacations");

Dunne v. Dunne, 209 N.J. Super. 559, 570 (App. Div. 1986) ("Common sense

dictates that a college student requires more for support than a student in high

school."). The judge was entitled to credit plaintiff's testimony regarding the

child-related expenses, and defendant fails to identify what specific expenses

were duplicative.

      In a separate point, defendant contends the judge erred "as a matter of law

and fact" in finding Ophelia was not emancipated. "Deciding whether a child is

emancipated requires a fact-sensitive analysis." Ricci v. Ricci, 448 N.J. Super.

546, 571-72 (App. Div. 2017) (citing Newburgh v. Arrigo, 88 N.J. 529, 543

(1982), holding modified on other grounds, Heuer v. Heuer, 152 N.J. 226


2
  Perhaps the judge took plaintiff's projection of her current salary into account
and decided the three-year average was a more realistic projection of income
going forward.
                                                                          A-5437-16T3
                                       17
(1998)). "[T]he essential inquiry is whether the child has moved 'beyond the

sphere of influence and responsibility exercised by a parent and obtains an

independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301,

308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch.

Div. 1995)).

      Prima facie proof of emancipation is established when the child reaches

the age of eighteen, resulting generally in termination of the parental support

obligation. Ricci, 448 N.J. Super. at 572. The child's enrollment in a full-time

post-high school educational program may compel continued support. Ibid. "In

this regard, college costs are recognized as a form of support for unemancipated

children." Id. at 572-73 (citing Gac v. Gac, 186 N.J. 535, 542 (2006)). "[A]

trial court should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the

Newburgh factors, as well as any other relevant circumstances, to reach a fair

and just decision whether and, if so, in what amount, a parent or parents must

contribute to a child's educational expenses." Gac, 186 N.J. at 543. The trial

judge did that in this case.

      Citing Gac, defendant argues that he should not be compelled to pay for

Ophelia's college costs because he is estranged from the children and was not

consulted. The Gac Court specifically noted, however, that "[a] relationship


                                                                         A-5437-16T3
                                      18
between a non-custodial parent and a child is not required for the custodial

parent or the child to ask the non-custodial parent for financial assistance to

defray college expenses." Id. at 546.

      Moreover, although the Court in Gac held that the non-custodial parent

was not obliged to contribute to his daughter's college education costs, the facts

in that case are distinguishable. Perhaps most importantly, the non-custodial

parent in Gac was not asked to contribute anything until after his daughter had

graduated from college, which deprived him of any opportunity to participate in

the college decision or to plan his own finances to pay for college. Id. at 546-

47. In addition, the Court considered it relevant that the non-custodial parent

"likely would not have assisted [his daughter] willingly had the family remained

intact[,]" and his "values and goals towards higher education likely would not

have led him to pay for [her] college education[.]" Id. at 545.

      Here, while he was not consulted prior to Ophelia's specific choice of a

college, unlike the non-custodial parent in Gac, the judge specifically found that

both parents appreciated their children's needs and desires for higher education

following high school. Moreover, despite defendant's continued protestations

to the contrary, the record provides ample support for the trial judge's conclusion

that defendant was responsible for the estrangement of his children, and it was


                                                                           A-5437-16T3
                                        19
not the result of plaintiff's allegedly successful alienating conduct. We affirm

the child support provisions of the JOD, including the determination that

Ophelia is not emancipated and defendant shall contribute to her college

expenses.

                                        C.

      Defendant contends that the award of counsel fees was contrary to legal

principles, failed to consider plaintiff's bad faith, and was result of the judge's

bias. An award of attorneys' fees in a matrimonial action is discretionary. Eaton

v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We will only disturb a trial

court's determination on the "rarest occasion" because of a "clear abuse of

discretion." Slutsky v. Slutsky, 451 N.J. Super. 332, 365-66 (App. Div. 2017)

(quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). Before

making any award, the judge is required to consider the factors in Rule 5:3-5(c),

which the trial judge did.

      The judge's written decision detailed defendant's largely unsuccessful, at

times frivolous, bad-faith-motivated conduct during eight years of litigation.

We find no reason to reverse an award of counsel fees that largely rested upon

factors (3), (7), (8) and (9) in the Rule and was fully supported by those factors.




                                                                           A-5437-16T3
                                       20
Defendant's assertions to the contrary are without sufficient merit to warrant

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

      Finally, not only within the context of defendant's challenge to the fee

award, but also with respect to his challenge to all financial issues in the case,

and, implicitly to the June 2017 fee order, defendant argues the trial judge's

"blatant bias and hostility against [him], and [the judge's] collusive relationship

with counsel for plaintiff[,]" tainted all proceedings and compel reversal. We

have reviewed all the transcripts provided and reject the argument out-of-hand.

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

      Affirmed.




                                                                           A-5437-16T3
                                       21
