                                NOT FOR PUBLICATION WITHOUT THE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-5092-17T2

MARCIE SANDERS,

          Plaintiff-Respondent,

v.

SCOTT SANDERS,

     Defendant-Appellant.
_______________________

                   Submitted March 2, 2020 – Decided July 21, 2020

                   Before Judges Messano and Susswein.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FM-02-2823-16.

                   Callagy Law, attorneys for appellant (Brian P. Mc
                   Cann, on the briefs).

                   Hellring Lindeman Goldstein & Siegal LLP, attorneys
                   for respondent (Sheryl Elizabeth Koomer, Bruce Steven
                   Etterman, and Corinne Bridget Maloney, of counsel and
                   on the brief).

PER CURIAM
      Plaintiff Marcie Sanders and defendant Scott Sanders married in 2000.

When plaintiff filed her complaint for divorce in 2016, defendant was

incarcerated, having been convicted and sentenced in federal district court for

the Southern District of New York for multiple counts of mail fraud involving

his livery cab business.1 Defendant filed a pro se answer to the complaint and

also asserted a counterclaim.

      At all times relevant to this appeal, plaintiff was employed as the manager

of a private club in New York City. In 1998, she formed a corporation in New

York to acquire and hold commercial property in Brooklyn (the Brooklyn

property). In 2005, using marital assets and through a New York limited liability

company with plaintiff as its sole officer, the parties acquired a commercial

building in Queens (the Queens property). Defendant operated his business out

of these two locations. In addition, during the marriage and using marital assets,

the parties purchased a home on Staten Island, and properties in Saddle River

and Fort Lauderdale, Florida, all in plaintiff's name. At the time of divorce

proceedings, plaintiff was residing with the parties' children in the Saddle River

property.


1
  Initially, defendant was housed at a federal correctional facility in New Jersey.
Later during the proceedings, he was moved to a federal institution in Miami,
Florida.
                                                                           A-5092-17T2
                                        2
      Early in the litigation, plaintiff served a subpoena and deposition notice

on the parties' accountant. Defendant moved to quash, and plaintiff cross -

moved, alleging defendant had altered the corporate records for the two New

York real estate holding companies. The judge found that defendant altered the

records while imprisoned to redirect to him all process served on the companies,

and defendant had substituted himself for plaintiff as chief executive officer of

the corporation holding the Brooklyn property. The judge entered an order in

November 2016 (the November 2016 order) that gave defendant thirty days to

"reinstate to their original state all records . . . altered with the New York

Secretary of State," and restrained defendant "from affecting any asset and/or

entity titled in plaintiff's name or held in joint names[.]"

      In April 2017, plaintiff filed an order to show cause claiming that

defendant violated the November 2016 order by failing to correct the records

with the State of New York and terminating the real estate broker she hired to

sell the Brooklyn and Queens properties. In May, the judge entered an order

(the May 2017 order) again requiring defendant to correct the companies'

records and restraining him from any further interference with plaintiff's

management and sale of both properties, as well as the now vacant Staten Island

property.


                                                                         A-5092-17T2
                                         3
      After having already obtained an extension to respond to plaintiff's

discovery demands, and now represented by counsel, defendant requested a

further extension. At a case management conference held on June 29, 2017, the

judge granted defendant a further extension to July 14 to provide discovery

responses and file a previously ordered updated Case Information Statement

(CIS).   The order conditioned the extension upon defendant correcting the

altered company records. In the interim, defendant had filed lawsuits against

plaintiff regarding the New York companies and properties, as well as lis

pendens against the real estate. Before filing responses to plaintiff's discovery

demands, defense counsel moved to be relieved.

      On August 4, 2017, the judge granted plaintiff's motion in aid of litigant's

rights. He found that defendant had violated the November 2016 and May 2017

orders restraining him from interfering with plaintiff's control and sale of the

properties. The August 2017 order sanctioned defendant $200 per day until he

dismissed the New York lawsuits, restrained him again from interfering with

plaintiff's efforts to sell the New York properties, ordered the release of

$100,000 from defendant's individual retirement account to plaintiff to

"establish a fund for the payment of her counsel fees and expenses" in defending

the New York lawsuits and cancelling the lis pendens. Critically, for purposes


                                                                          A-5092-17T2
                                        4
of our opinion, the order provided that defendant's pleading would be stricken

and default entered if he failed to "supply all discovery previously requested or

ordered . . . by August 25, 2017[,] upon written confirmation by plaintiff's

counsel."

      On August 9, a second attorney filed a substitution of counsel. Two days

before defendant's discovery responses were due, and one day before a

scheduled case management conference, successor counsel requested an

adjournment.    On the day of the conference, August 24, 2017, counsel sent a

letter to the court withdrawing from her representation of defendant; however,

prior defense counsel appeared at the conference on defendant's behalf.

Defendant still had not furnished discovery. The judge relieved both attorneys

and entered an order providing that defendant had until September 29, 2017, to

file a substitution of counsel or be subject to default. The order further provided

that a default hearing pursuant to Rule 5:5-10 was now scheduled for October

26.

      On September 29, successor counsel filed a substitution of attorney and

reentered the case. A few days later, she filed a motion, returnable October 27,

to: 1) vacate the August 2017 order threatening default unless defendant

complied with discovery demands; 2) modify the November 2016 and May 2017


                                                                           A-5092-17T2
                                        5
orders to allow defendant "to be involved in the renting or selling" of the New

York properties, or, alternatively, order plaintiff to provide defendant "in

writing of all dealings and or communications related to the sale of [the]

properties"; 3) escrow any closing proceeds; 4) order "[p]laintiff to provide an

accounting of all marital monies received since . . . [d]efendant's incarceration";

and 5) set a final discovery schedule. On October 3, 2017, defendant filed a

CIS.

       On October 6, plaintiff filed a notice of proposed final judgment of

divorce.   See Rule 5:5-10 (requiring "[i]n those cases where equitable

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

been entered," that the plaintiff serve "a Notice of Proposed Final Judgment . . .

not less than [twenty] days prior to the hearing date"). At a hearing on October

31, now represented by a third law firm, defendant moved to vacate default.2

The judge denied the motion, and we denied defendant's application for

emergent relief. The default hearing took place on November 8, with plaintiff




2
  It is unclear from the record why the default hearing did not take place on
October 26.
                                                                           A-5092-17T2
                                        6
as the sole witness. Defendant was represented by counsel who cross-examined

plaintiff over four non-consecutive days through December 19, 2017. 3

      During the hearing, defendant moved orally and in writing to vacate

default. On February 2, 2018, the judge entered an order denying defendant's

request to vacate default and for other relief from earlier orders. Successor

counsel moved by way of order to show cause to be relieved again, and the judge

granted her motion. The final day of the hearing occurred on April 26, 2018,

with defendant representing himself and conducting additional cross-

examination of plaintiff. 4

      Defendant's subsequent pro se motion for reconsideration of the February

2018 order was denied, and, on May 25, 2018, the judge entered a final judgment

of divorce (JOD) accompanied by a detailed written decision. This appeal

followed.5


3
   We note there was limited hearing time per session, at least in part because
defendant appeared by phone and the institution limited the amount of time he
could stay on the call. We also note that successor counsel appeared with
counsel from the third law firm for two of the four days. Counsel from the third
firm conducted all cross-examination of plaintiff.
4
   It is unclear from the record when the third law firm was relieved of
representing defendant.
5
  Defendant filed a pro se motion for reconsideration of the JOD, which the
judge denied on August 3, 2018, after defendant's pro se appeal had been filed.
                                                                        A-5092-17T2
                                       7
      Defendant raises two points for our consideration. First, he contends the

judge abused his discretion by entering default, refusing to vacate default and

proceeding to enter the JOD by default following the hearing. Defendant also

argues that the judge mistakenly exercised his discretion regarding equitable

distribution. Defendant urges us to vacate those provisions of the JOD and

remand for discovery and a new trial. We reject both arguments and affirm.

                                       I.

      We initially recognize plaintiff's contention that we should dismiss this

appeal because defendant failed to first move in the Family Part to vacate the

default JOD pursuant to Rule 4:50-1. She relies in large part on our decision in

Haber v. Haber, where we considered a defendant's ability to appeal a default

divorce judgment that resulted after the defendant filed an answer and

counterclaim but failed to appear at trial. 253 N.J. Super. 413, 414–15 (App.

Div. 1992).6 We held that "a direct appeal will not lie from a judgment by

default." Id. at 416 (citing McDermott v. Patterson, 122 N.J.L. 81, 84 (E. & A.

1939), and Walter v. Keuthe, 98 N.J.L. 823 (E. & A. 1923)); accord N.J. Div. of




6
  We do not address the unpublished cases cited by plaintiff in support of her
argument. R. 1:36-3.
                                                                        A-5092-17T2
                                       8
Youth & Family Servs. v. T.R., 331 N.J. Super. 360, 363 (App. Div. 2000)

(citing Haber, 253 N.J. Super. at 416).

            The reason underlying this rule is that the very
            theory and constitution of a court of appellate
            jurisdiction is only the correction of errors which
            a court below may have committed, and a court
            below cannot be said to have committed an error
            when its judgment was never called into exercise,
            and the point of law was never taken into
            consideration,     but    was     abandoned      by
            acquiescence or default of the party who raised
            it.

            [Haber, 253 N.J. Super. at 416 (quoting
            McDermott, 122 N.J.L. at 84).]

"The proper course is to apply to the trial court to vacate the judgment []"

pursuant to Rule 4:50-1. Ibid. (citing Walter, 98 N.J.L. at 827).

      Plaintiff is undoubtedly correct that defendant never moved in the Family

Part for relief from the default JOD pursuant to Rule 4:50-1.          However,

defendant's reply brief persuasively argues that the circumstances here are

sufficiently distinguishable from Haber, most notably by defendant's persistent,

albeit unsuccessful, attempts to have the judge vacate the entry of default before

and during the default hearing and before the default JOD was entered.

Additionally, defendant sought reconsideration by the judge before filing the

appeal.


                                                                          A-5092-17T2
                                          9
      In short, unlike the situation in Haber, where the defendant never appeared

after filing his initial pleading, defendant here continued to assert legal positions

that were never "abandoned by acquiescence or default[.]"            Ibid. (quoting

McDermott, 122 N.J.L. at 84).          We therefore consider the substance of

defendant's argument.

      Defendant's essential claim is that the judge "failed to follow the two-step

[p]rocess . . . set forth in [Rule] 4:23-5," which is applicable to Family Part

actions.   See R. 5:1-1 (providing that "[c]ivil family actions shall also be

governed by the rules in Part IV insofar as applicable and except as otherwise

provided by the rules in Part V[]"). "Rule 4:23-5 codified a two-step procedural

paradigm that must be strictly adhered to before the sanction of dismissal of a

complaint with prejudice for failing to answer interrogatories or provide other

discovery can be imposed." Thabo v. Z Transp., 452 N.J. Super. 359, 369 (App.

Div. 2017) (citing St. James AME Dev. Corp. v. City of Jersey City, 403 N.J.

Super. 480, 484 (App. Div. 2008)). This two-step process applies to non-

compliance in responding to interrogatories (Rule 4:17), demands for documents

(Rule 4:18), and physical or mental examinations (Rule 4:19). Pressler &

Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 4:23-5 (2020). "These

procedural requirements must be scrupulously followed and technically


                                                                             A-5092-17T2
                                        10
complied with." Thabo, 452 N.J. Super. at 369 (citing Sullivan v. Coverings &

Installation, Inc., 403 N.J. Super. 86, 95 (App. Div. 2008)).

      The premise of defendant's argument is mistaken. As plaintiff properly

points out, the judge utilized sanctions available pursuant to Rule 4:23-2 to

strike defendant's answer and counterclaim because of repeated, flagrant and

contumacious failures to abide by court orders compelling responses to

plaintiff's discovery demands.

      We start by recognizing that the "standard of review for dismissal of a

complaint with prejudice for discovery misconduct is whether the trial court

abused its discretion[.]" Id. at 368 (alteration in original) (quoting Abtrax

Pharm. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995)). Under Rule 4:23-2, if a

party fails to provide court-ordered discovery, the court may issue "such orders

in regard to the failure as are just," which includes "striking [the] pleadings . . .

or dismissing the action . . . with or without prejudice[.]" R. 4:23-2(b) (emphasis

added). Although the sanction of dismissal under that rule "is drastic and . . .

generally not to be invoked[,]" a court may do so "in those cases in which the

order for discovery goes to the very foundation of the cause of action, or where

the refusal to comply is deliberate and contumacious." Abtrax, 139 N.J. at 514

(quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)); accord


                                                                             A-5092-17T2
                                        11
Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005) (dismissal with

prejudice for violation of a court order must "evince[] 'a deliberate and

contumacious disregard of the court's authority.'" (quoting Kosmowski v. Atl.

City Med. Ctr., 175 N.J. 568, 575 (2003))). "[A] party invites this extreme

sanction by deliberately pursuing a course that thwarts persistent efforts to

obtain the necessary facts." Abtrax, 139 N.J. at 515.

      Here, plaintiff sent interrogatories and requests for documents to

defendant in January 2017. In May, the judge entered a case management order

compelling defendant to respond to discovery demands and file a CIS by the end

of the month or his pleading would be stricken. Despite extensions, by the time

the court issued the August 2017 order, defendant still had not responded to

discovery or submitted a completed case information statement. In the August

2017 order, the judge again indicated that "defendant's [a]nswer and

[c]ounterclaim would be stricken" if he failed to produce all outstanding

discovery "previously requested or ordered by the court" by August 25, 2017 ,

which was later extended to September 29, 2017.

      Defendant never responded to plaintiff's request for documents and only

provided an incomplete case information statement after the extended deadline.

Even after that deadline passed, the court did not immediately issue an order


                                                                       A-5092-17T2
                                      12
entering default. Defendant's obstinance was not without consequence, because

at the hearing, defense counsel referenced several documents during cross-

examination that plaintiff's counsel claimed to have never received. The record

fully supports the judge's express finding that defendant's conduct was

"egregious, long standing, willful[,] and a deliberate attempt to frustrate the

orderly presentation of the case."

      Further, the judge was entitled to consider the totality of defendant's

contumacious conduct, which went beyond a mere discovery dispute, and which

we outlined in detail above. In his final written decision incorporated in the

JOD, the judge detailed the totality of defendant's conduct, including his brazen

interference with plaintiff's ability to sell the marital properties in direct

violation of court orders, and his steadfast refusal to correct corporate records

he admittedly altered, together with the discovery violations and failure to file a

complete case information statement. All this informed the judge's decision to

strike defendant's pleading and deny all efforts to vacate default.

      In his reply brief, defendant argues that the court never expressly

mentioned Rule 4:23-2. While that may be true, we think it was implicit in the

judge's express findings and conclusions. Moreover, nothing in the record

suggests that defendant ever objected to the entry of default because the two-


                                                                           A-5092-17T2
                                       13
step Rule 4:23-5 procedure was not employed, or, more importantly, that

defendant had actually complied with all of his discovery obligations, a

necessary predicate for reinstatement of a party's pleadings under that Rule.

This late-advanced procedural argument is devoid of any merit and warrants no

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

                                       II.

      Defendant challenges the equitable distribution of marital property

ordered by the judge in the JOD. Specifically, defendant argues that the judge's

valuation of the real estate assets relied on comparative market analyses supplied

by plaintiff, and the judge's distribution of those assets was inequitable. We

disagree and affirm.

      "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)). "[F]indings by a

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

credible evidence."    Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare,

154 N.J. at 411–12.) On the other hand, "legal conclusions, and the application

of those conclusions to the facts, are subject to our plenary review." Reese v.


                                                                          A-5092-17T2
                                       14
Weis, 430 N.J. Super. 552, 568 (App. Div. 2013) (citing Manalapan Realty, LP

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

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

of marital assets." Steneken v. Steneken, 183 N.J. 290, 299 (2005) (citation

omitted). "It reflects a public policy that is 'at least in part an acknowledgement

"that marriage is a shared enterprise, a joint undertaking, that in many ways []

is akin to a partnership."'" Thieme, 227 N.J. at 284 (alteration in original)

(quoting Smith v. Smith, 72 N.J. 350, 361 (1977)). "Applying the equitable

distribution statute, a Family Part judge undertakes a three-step analysis." Ibid.

n.4 (citing Rothman v. Rothman, 65 N.J. 219, 232 (1974)). "First, the court

must 'decide what specific property of each spouse is eligible for distribution';

second, it 'must determine [the property's] value for purposes of such

distribution'; and finally, it 'must decide how such allocation can most equitably

be made.'" Ibid. (alteration in original) (quoting Rothman, 65 N.J. at 232).

      "When reviewing the equitable distribution ordered after trial, '[w]e must

decide whether the . . . court mistakenly exercised its broad authority to divide

the parties' property or whether the result reached was bottomed on a

misconception of law or findings or fact that are contrary to the evidence. '"

Tannen v. Tannen, 416 N.J. Super. 248, 281 (App. Div. 2010) (alteration in


                                                                             A-5092-17T2
                                        15
original) (quoting Genovese v. Genovese, 392 N.J. Super. 215, 223 (App. Div.

2007)), aff'd. o.b., 208 N.J. 409 (2011). Even after entry of default, the "plaintiff

still has an ongoing obligation to persuade the court, by a preponderance of the

evidence, that the proposal for equitable distribution is fair and equitable under

the specific facts of the case[.]"   Clementi v. Clementi, 434 N.J. Super. 529,

532 (Ch. Div. 2013).

      In his written opinion incorporated into the JOD, the judge identified all

assets subject to equitable distribution pursuant to N.J.S.A. 2A:34-23.1, and all

outstanding debts. He reviewed plaintiff's proposal for equitable distribution,

the statutory factors and plaintiff's "clear, concise[,] and accurate" testimony

during the default hearing. The judge awarded plaintiff the Saddle River home

and its contents, and the Florida condominium unit and its contents, except for

personal items of the defendant, subject to outstanding mortgages on each

property for which plaintiff would be solely responsible. He awarded defendant

"one-half of the net proceeds from the sale" of the Staten Island property. The

judge concluded the Brooklyn property was a "premarital asset" and ordered

defendant to "provide such documents . . . as may be necessary to confirm that

the plaintiff is [f]ee [s]imple [a]bsolute owner" of the property . The judge

awarded defendant the Queens property.


                                                                             A-5092-17T2
                                        16
      Defendant argues that the judge erred in his valuation of the real estate

because even though defendant was in default, plaintiff was required to produce

expert valuation evidence as to each property, and her estimation of market

value of the properties was inadequate evidence. See, e.g., Jacobitti v. Jacobitti,

263 N.J. Super. 608, 613 (App. Div. 1993) (noting generally that trial judges are

"caution[ed] . . . against fixing market value of real property without the benefit

of expert appraisal evidence").

      However, both the Staten Island and Brooklyn properties had sold prior to

the hearing.   There is no question that the sale prices constituted reliable

evidence of value that supported the court's valuation as to those properties. See,

e.g., Hackensack Water Co. v. Div. of Tax Appeals, 2 N.J. 157, 162 (1949)

(noting for purposes of determining fair market value for real estate tax

purposes, and subject to other limitations and considerations, "[a] selling price

is a guiding indicium of fair value . . . [that] might under peculiar circumstances

become controlling").

      Regarding the Queens property, which was not encumbered by any

mortgage, plaintiff testified that she had negotiated a sale price of $2.8 million

but could not consummate the sale because of the lis pendens defendant filed.

Plaintiff supplied the court with an offer sheet from February 2017 on a realtor's


                                                                           A-5092-17T2
                                       17
stationary that confirmed the relevant terms of the sale. In his decision, the

judge also noted that plaintiff had previously prepared a comparative market

analysis valuing the property at $2.25 million. Notably, despite extensive cross-

examination, plaintiff's testimony was not challenged, nor did defendant's CIS

include estimated values for the three properties.

      The record also supports the court's valuation of the Saddle River and

Florida residences. With respect to the Saddle River marital residence, plaintiff

testified that she obtained a comparative market analysis that valued the home

at $2.5 million.   Defense counsel challenged plaintiff's reliance upon the

analysis during cross-examination, and defendant reasserts the challenge before

us. Defendant is correct that a comparative market analysis is not reliable

evidence of value since it is hearsay. However, plaintiff also testified that the

assessed value according to the property tax bill was approximately $2 million;

the tax bill was admitted into evidence during the hearing. Additionally, in his

net worth statement submitted in connection with his federal sentencing

proceeding in 2014, defendant estimated the value of the Saddle River home at

$2.4 million. Cf. Esposito v. Esposito, 158 N.J. Super. 285, 294 (App. Div.

1978) (finding corporate net worth statement prepared for reasons unrelated to

the divorce litigation as a reliable indicator of value). Defendant's belatedly


                                                                         A-5092-17T2
                                      18
filed CIS asserted the value of the property was $4.5 million, but no

documentation was annexed to support that figure, which was nearly double

what defendant claimed the value was four years earlier.

      The court found the Florida residence was valued at approximately $1.1

million based upon plaintiff's testimony, including a comparative market

analysis, which was admitted into evidence. The property tax bill, which was

also admitted into evidence, assessed the unit at $984,660.          Although the

comparative market analysis suffered from the same limits noted above,

defendant's statement of net worth filed at sentencing only valued the unit at

$650,000. In his CIS, defendant valued the Florida residence at $1 million,

which is largely consistent with the judge's acceptance of plaintiff's proposed

valuation. In short, there was no mistaken exercise of discretion in the judge's

valuation of the real estate subject to equitable distribution.

      Defendant also argues that the judge erred by failing to assign value to the

personal property within the Saddle River and Florida homes. Our review of the

record reveals that plaintiff's testimony is this regard was equivocal, at one point

estimating the furniture in the Saddle River home was worth $300,000, but later

testifying she was unaware of the value of used furniture. Notably, defendant's




                                                                            A-5092-17T2
                                        19
CIS included no value for the personal property at either location. The judge

did not specifically address the issue.

        However, when considering the equitable distribution of all assets, we

cannot conclude that the failure to separately value this personal property and

specifically account for it in the distribution ordered by the JOD requires a

remand. The overall distribution was fair, equitable, and just, with the judge

awarding defendant other assets to counterbalance any asserted inequality in the

net value of the real estate distributed to the parties.

         Family Part judges have "broad discretion" in "allocating assets subject

to equitable distribution." Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div.

2012) (citing Steneken v. Steneken, 367 N.J. Super 427, 435 (App. Div. 2004)).

That inquiry requires a "weighing of the many considerations and circumstances

. . . presented in each case." M.G. v. S.M., 457 N.J. Super. 286, 294 (App. Div.

2018) (quoting Stout v. Stout, 155 N.J. Super 195, 205 (App. Div. 1977)). By

statute, equitable distribution is "to advance the policy of promoting equity and

fair dealing between divorcing spouses[,]" and courts must consider all relevant

factors. Barr v. Barr, 418 N.J. Super. 18, 45 (App. Div. 2011); N.J.S.A. 2A:34-

23.1.    Accordingly, "an equitable distribution does not presume an equal




                                                                         A-5092-17T2
                                          20
distribution."   M.G., 457 N.J. Super. at 295.     Defendant's argument to the

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

      We also find defendant's two remaining ancillary arguments lack merit.

He asserts that the judge improperly penalized him in the distribution scheme

because of defendant's criminal conduct and the fines and restitution ordered as

part of his sentence, which were paid from marital assets before the divorce

complaint was filed. In Kothari v. Kothari, the defendant argued that because

there were no longer any marital funds remaining at the time the plaintiff filed

her divorce complaint, there was no basis for an award of equitable distribution.

255 N.J. Super. 500, 509 (App. Div. 1992). We observed that, "[t]he implicit

premise of defendant's argument is that dissipation of marital property can only

occur after the filing date of the divorce complaint." Id. at 510. We rejected

that premise, holding that, "the power to order equitable distribution does not

depend upon the 'existence' of marital property on the filing date of the divorce

complaint." Ibid. We held that a court may thus impose a cash obligation on

one spouse in favor of another for funds dissipated during the marriage, even i f

such conduct occurred prior to the filing of the divorce complaint. Ibid.

      Defendant suggests the payments of fines and restitution were made in an

attempt to salvage an ongoing marital enterprise and not an intentional


                                                                            A-5092-17T2
                                       21
dissipation of the marital assets. See, e.g., Monte v. Monte, 212 N.J. Super. 557,

567–68 (App. Div. 1986) (recognizing debts incurred through intentional

dissipation of marital assets are "no more than a fraud on marital rights" (quoting

Sharp v. Sharp, 473 A.2d 499, 505 (Md. App. 1984))). However, plaintiff was

not responsible for defendant's admitted fraud and its consequences. To the

extent the equitable distribution in this case was unequal, the judge's

consideration of defendant's criminal conduct that resulted in dissipation of

millions of dollars of marital assets before the divorce complaint was filed was

not a mistaken exercise of discretion.

      Finally, defendant contends that judge erred in determining the Brooklyn

property was a premarital asset "immune from equitable distribution." While

the judge at one point said the property was a premarital asset, he nevertheless

included it in his discussion of the value of all the real estate. Moreover,

defendant's claim that the distribution ordered by the JOD was inequitable is

premised on inclusion of the value of the Brooklyn property in plaintiff's share

of the distributed assets, not its exclusion from the list of marital real estate

assets.

      Affirmed.




                                                                           A-5092-17T2
                                         22
