                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5829-13T1
                                              A-2813-14T1

NANCY G. SLUTSKY,

     Plaintiff-Respondent/             APPROVED FOR PUBLICATION
     Cross-Appellant,
v.                                          August 8, 2017

                                          APPELLATE DIVISION
KENNETH J. SLUTSKY,

     Defendant-Appellant/
     Cross-Respondent.
_______________________________


NANCY G. SLUTSKY,

     Plaintiff-Respondent,

v.

KENNETH J. SLUTSKY,

     Defendant-Appellant.
________________________

DONAHUE, HAGAN, KLEIN &
WEISBERG, LLC,

     Respondent.
_______________________________

         Argued December 1, 2016 - Decided August 8, 2017

         Before Judges Lihotz, Hoffman and Whipple.

         On appeal from Superior Court of New Jersey,
         Chancery   Division,  Family   Part,  Morris
         County, Docket No. FM-14-1535-08.
             Edward S. Snyder argued the cause for
             appellant/cross-respondent in A-5829-13 and
             appellant   in  A-2813-14   (Snyder,  Sarno,
             D'Aniello, Maceri & DaCosta, LLC, attorneys;
             Mr. Snyder, of counsel and on the briefs;
             Scott D. Danaher, on the briefs).

             Ronald M. Abramson argued the cause for
             respondent/cross-appellant   in   A-5829-13
             (Winne,   Banta,   Basralian &  Kahn,   PC,
             attorneys; Mr. Abramson, of counsel and on
             the brief).

             Donahue, Hagan, Klein & Weisberg, LLC, pro
             se respondent in A-2813-14 (Francis W.
             Donahue, of counsel and on the brief).

     The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

     These      two   appeals       arise   from       the   parties'      matrimonial

litigation.      The court scheduled the matters back-to-back before

the same panel to address all issues in a single opinion.

     In    Docket     No.    A-5829-13,         defendant      Kenneth     J.    Slutsky

appeals from a May 30, 2014 final judgment of divorce (final

judgment).       He challenges various aspects of final judgment;

most significantly, the rejection of evidence regarding the need

to   repay      family      loans    and        the    valuation     and     equitable

distribution of his interest as an equity partner in a large New

Jersey    law   firm.       Additionally,         defendant      appeals        from   the

ordered      equitable      distribution          of    what    he   asserts           were

premarital IRAs and the awarded counsel fees and expert costs to

plaintiff Nancy Slutsky.             Defendant further challenges a July



                                            2                                    A-5829-13T1
28, 2014 order denying his motion for reconsideration, and a

second order filed the same date, which implemented a payment

schedule for the ordered amount of equitable distribution and

fees.

      Plaintiff cross-appeals, challenging the final judgment and

the   July    28,     2014       orders.     She   argues    the   judge     improperly

denied     her      claim    for     financial     adjustments        to   account    for

insufficient        pendente       lite     support,   and    maintains      the    trial

judge abused his discretion in not ordering defendant to satisfy

the entirety of her counsel fees and expert costs, by allowing

defendant to satisfy ordered obligations over time.

      In     the    second        matter,    Docket    No.    A-2813-14,      defendant

appeals      from    a   January      9,    2015   order    denying    his   motion    to

dismiss for lack of standing, a petition filed by plaintiff's

former counsel to enforce the order mandating defendant remit

payment to satisfy obligations owed to plaintiff.                             Defendant

argues       counsel        no     longer     represented      plaintiff       in     the

application, making counsel adverse to her interests.

      Before this court, defendant moved to supplement the record

with subsequent orders relating to the amount of plaintiff's

counsel fee obligation.              The reviewing motion panel deferred the

matter for consideration in this opinion.                    We grant the motion.




                                              3                                A-5829-13T1
      For the reasons discussed in our opinion, we affirm the

order    rejecting     defendant's         request           to    require       plaintiff      to

contribute to the repayment of monies transferred from various

family    trusts;      we     reverse      the         evaluation         of    the     goodwill

attached to defendant's interest in his law firm, as well as the

percentage     interest       in    this   asset,            granted     to    plaintiff;       we

reverse the July 28, 2014 order subjecting defendant's Union

Central    and   Wells      Fargo     IRAs        to    equitable         distribution;         we

reverse    the      award    of     counsel       fees,        but      affirm    defendant's

ordered payment of expert costs.                        Additionally, we affirm the

final    judgment     provision       denying          plaintiff's            request    for    an

allocation     of    additional       support          based       on   the    pendente       lite

award    and   reject       as     unavailing          her    claim      for     an   award     of

additional attorney's fees.

      Because       various       provisions           in    the     final      judgment       are

vacated, the order under review in A-2813-14 is reversed.                                      The

matter must be reviewed on remand by a different Family Part

judge.

                                             I.

      After thirty years of marriage, plaintiff filed a complaint

for   dissolution      of     the    parties'          marriage         and    review    of    her

related    requests         for     alimony,       equitable            distribution,          and

satisfaction of debts, counsel fees, and costs.                                The litigation




                                              4                                         A-5829-13T1
was   difficult      and    protracted.           Some   delays         in      the       final

disposition occurred from June 2009 to April 2013, to abide the

conclusion     of    a     guardianship        proceeding        and     another          delay

resulted in 2011, to accommodate one party's medical concerns.

Ultimately,     trial       commenced      on    January     6,        2014,        and     was

conducted     over    nineteen     days.        The   judge       issued        a     written

opinion, addressing all disputed issues.                         Final judgment was

filed on May 30, 2014.

      Post-trial         cross-motions          sought      to         modify         certain

provisions of the final judgment and the judge issued an amended

final judgment, correcting clerical errors.                       On the same date,

two   other    orders       were   filed.          These      orders          effectuated

provisions of the amended final judgment, and included a payment

schedule      for        defendant's      satisfaction           of       the         ordered

obligations.         Motion    practice        continued.         Subsequent           orders

denied defendant's request to stay pending appeal the financial

obligations set forth in the final judgment; denied defendant's

request for additional findings of fact and conclusions of law;

and granted a limited stay to allow defendant to request this

court stay execution of the amended final judgment.                             We denied

defendant's stay motion.

      The   parties       challenged    various       provisions         of     the       final

judgment arguing the judge's insufficient factual findings could




                                           5                                        A-5829-13T1
not sustain the legal conclusions reached, and contended legal

error and abuse of discretion require reversal.                     We recite the

well-settled standards guiding our review of Family Part orders

and judgments.

       In our review of a non-jury trial, we defer to a trial

judge's factfinding "when supported by adequate, substantial,

credible evidence."      Cesare v. Cesare, 154 N.J. 394, 412 (1998).

We also note proper factfinding in divorce litigation involves

the Family Part's "special jurisdiction and expertise in family

matters,"     which    often   requires       the       exercise     of   reasoned

discretion.    Id. at 413.      In our review, "[w]e do not weigh the

evidence,     assess    the    credibility         of     witnesses,      or    make

conclusions about the evidence."            Mountain Hill, LLC v. Twp. of

Middletown,     399    N.J.    Super.       486,    498     (App.    Div.      2008)

(alteration in original) (quoting State v. Barone, 147 N.J. 599,

615 (1997)), certif. denied, 199 N.J. 129 (2009).                   Consequently,

when   this   court    concludes   there      is    satisfactory       evidentiary

support for the trial court's findings, "its task is complete

and it should not disturb the result."                  Beck v. Beck, 86 N.J.

480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 161-62

(1964)).

       In bench trials, our "[d]eference is especially appropriate

when the evidence is largely testimonial and involves questions




                                        6                                   A-5829-13T1
of credibility."            Cesare, supra, 154 N.J. at 412 (quoting In re

Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).                                 We

recognize a trial judge who observes witnesses and listens to

their testimony, develops "a feel of the case" and is in the

best position to "make first-hand credibility judgments about

the witnesses who appear on the stand."                       N.J. Div. of Youth &

Family Servs. v. E.P., 196 N.J. 88, 104 (2008).                          In contrast,

review of the cold record on appeal "can never adequately convey

the actual happenings in a courtroom."                        N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 448 (2012).

    Reversal          is     warranted     when       the    trial    court's    factual

findings 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.

Inv'rs   Ins.    Co.        of   Am.,     65   N.J.    474,     484   (1974)     (quoting

Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App.

Div.),   certif.           denied,   40    N.J.       221    (1963)).      All    "legal

conclusions, and the application of those conclusions to the

facts, are subject to our plenary review."                        Reese v. Weis, 430

N.J. Super. 552, 568 (App. Div. 2013).

    In this matter, the trial judge issued a written opinion,

identified      the    undisputed         facts,      related    aspects    of    expert

testimony, and stated his conclusions.                      Noting not all decisions




                                               7                                 A-5829-13T1
set forth in the final judgment are challenged on appeal, we

limit our discussion to facts underlying discrete challenges,

which we include in the discussion of each individual issue.


                                      II.

    We    start   with   the   nine    issues     raised    by   defendant     on

appeal.   Where appropriate, we have combined arguments directed

to similar matters.

                                      A.

    Initially,    defendant     argues      he   was   denied    a   fair   trial

because   plaintiff   engaged    in    "willful,       contumacious    behavior

that made a mockery of justice," for which the judge declined to

sanction her.      Defendant contends, "no reported case in New

Jersey has recited facts demonstrating more of an affront to the

justice system than the actions of this plaintiff" during the

pendency of this case.         Review of defendant's argument recites

plaintiff's obstreperous behavior "effectively precluded [him]

from cross-examining plaintiff . . . the key witness on the

issue of family loans."         Defendant maintains the judge should

have sanctioned plaintiff, followed through on his threats to

strike her pleadings, and, at the very least, draw an adverse

inference on the loan issue "instead of placating plaintiff" and

treating her in a solicitous manner.               Defendant's argument in

Point I strikes only at his request to equitably allocate monies



                                       8                                A-5829-13T1
borrowed from several family trusts; a related issue is raised

in Point V.

    Defendant testified regarding the nature and amount of the

loans    from    various   family    trusts.      He     explained   plaintiff's

spending resulted in a "tsunami" of credit card debt, which

could only be met by borrowing, and asserted approximately $1.9

million    was    loaned    by    the   trusts    to     maintain    the     marital

lifestyle, between the years 1987 and 2008.                 When received, the

monies were deposited into a joint account with plaintiff and

all must be repaid.              The trustees did not intervene in the

litigation to seek repayment.

    Admitted into evidence was a "revolving promissory note,"

dated June 15, 1998, executed by defendant and issued to the

June Slutsky Trust.        June Slutsky is defendant's mother and this

testamentary trust was created by her mother, Rose Gross.                          The

trust granted a lifetime interest to June and her sisters.                         The

remainder of June's interest passes to defendant.                          The note

contained a grid of blank boxes, which were to be completed with

amounts borrowed on stated dates.                A similar note, also dated

June 15, 1998, was executed by defendant to borrow money from a

credit    shelter   trust    established     by    his    late   father. 1        June

Slutsky was the sole trustee and defendant held her power of

1
    The notes were not included in the appendix on appeal.



                                         9                                   A-5829-13T1
attorney.        The third trust was an inter vivos insurance trust.

The     insurance       policy    pays        a    death      benefit        to    the   named

beneficiary,        defendant,        upon        the    death      of   both       insureds,

defendant's       parents.        Defendant         is   the       trustee    and    borrowed

against the cash value of the insurance policy.                               There was no

documentation for borrowings from the life insurance trust.

      Defendant testified he received permission for each trust

withdrawal       and      insisted       he       must     repay      the         obligations.

Defendant's testimony differentiated these borrowed sums from

gifts made by June.

      In addition, defendant presented a legal pad containing his

and   plaintiff's       handwriting,          which      he   explained       was    prepared

while     they    engaged        in   estate        planning.            Defendant       urged

plaintiff falsely testified she knew nothing about the loans

because he told her each time he borrowed money and the notes

demonstrated her knowledge of the debts and the requirement for

repayment.          The     legal      pad         notes      purportedly          calculated

additional       life     insurance       purchased           to     assure       plaintiff's

financial security in the event defendant predeceased June, who

required the debts be repaid and essentially "pull the rug out

from her [plaintiff] right away."

      In her scattered testimony, plaintiff did not agree she

knew of the obligation for repayment of the monies borrowed.




                                              10                                      A-5829-13T1
She   also    denied       understanding          the    debts    were     accounted        for

during estate planning discussions.                      In fact, in the course of

her   cross-examination            on     this     subject,      plaintiff          was    non-

responsive,     ignored      questions          asked,     as    well    as    the    judge's

instructions to answer "yes" or "no."

      Plaintiff's expert, Gary Phillips, analyzed the documents

and   opined       the     facts    raised        risks     these       trust       transfers

triggered tax consequences and would not be considered loans,

but rather a trust distribution to June, which were followed by

a gift to defendant.             Phillips acknowledged the trustees of all

three trusts were empowered to engage in loans; however, he

stated    the      notes    executed       by     defendant       lacked       an    interest

component,      the      instruments'        grids       were    not     completed         when

borrowings      were     made,     so     amounts       stated    on     the    notes     were

significantly        less    than       totals     claimed       by     defendant.          For

example,     the    June    Slutsky       Trust     note    reflected         borrowing      of

$56,000,     yet    defendant       claimed       the    actual       amount    loaned      was

$256,000;     the     credit     shelter         trust    note    reflected         loans    of

$275,500, yet defendant claimed $700,000 was borrowed.                               Phillips

further      challenged      the        claimed     loan    status       for    all       trust

borrowings because he found no record defendant made repayments.

      Plaintiff also presented de bene esse deposition testimony

of a bank loan officer responsible for reviewing documentation




                                             11                                      A-5829-13T1
submitted to obtain mortgage loans secured by the marital home.

The   loan   officer   testified       the    family       trust   debts     were    not

disclosed on the loan applications completed by defendant and

plaintiff.

      On appeal, defendant asserts plaintiff's failure to respond

to    questions   regarding      her     handwritten         notes,      showing     she

understood the debts, required the judge to draw an adverse

inference.        He    highlights           plaintiff's         extensive      higher

education, which includes a bachelor's degree in economics from

an Ivy League institution, a master's degree in finance from New

York University, and certifications as a public accountant and a

financial planner, as belying her claims of ignorance and lack

of    understanding.        He    also       argues    the       judge    erroneously

misapplied the law.

      "Generally speaking, in dividing marital assets the court

must take into account the liabilities as well as the assets of

the parties."     Monte v. Monte, 212 N.J. Super. 557, 567 (App.

Div. 1986); see also N.J.S.A. 2A:34-23.1(m) (requiring "debts

and    liabilities     of   the    parties"           to    be     considered       when

determining equitable distribution).                  Where marital debts are

proven, courts should deduct marital debts from the total value

of the estate, or allocate the obligations between the parties.

See Pascarella v. Pascarella, 165 N.J. Super. 558, 563 (App.




                                         12                                   A-5829-13T1
Div. 1979) (holding the trial judge was required to deduct debt

incurred during the marriage between husband and his mother);

Ionno    v.   Ionno,    148   N.J.   Super.   259,   262   (App.   Div.   1977)

(holding obligations should be allocated between the husband and

wife).

    These matters are fact sensitive.                When a particular debt

is claimed to be owed to a member of one spouse's family, the

burden of proof rests on the claiming spouse to establishing a

bona fide obligation to repay the monies asserted as loans.

Monte, supra, 212 N.J. Super. at 567-68.

    In Monte, the defendant questioned whether the loans to the

plaintiff's family were "bona fide."             Id. at 568.       This court

stated:

              Under these circumstances it would not be
              equitable to require [the] defendant to be
              charged with any portion of the loans if
              [the] plaintiff is not likewise required to
              pay.    Moreover, absent a finding as to
              whether the debts to [the] plaintiff's
              relatives did or did not exist, it may be
              necessary for those relatives to establish
              the basis and amount of the debts.

              [Ibid.]

    Following review of the facts at hand, we are not persuaded

defendant suffered prejudice by plaintiff's non-responsiveness

during cross-examination or her disruptive behavior tolerated by

the trial judge warranted a new trial.               We are hard-pressed to




                                       13                             A-5829-13T1
criticize the trial judge's attempts to control the courtroom.

In hindsight, one reading the trial transcripts might suggest

things should have been done differently.                     However, we are not

convinced possible errors when dealing with plaintiff prevented

defendant from presenting his case.

       We understand defendant argues plaintiff's claimed lack of

understanding       of    family        finances     and     estate    planning       is

incompatible with her extensive financial and tax educational

achievements.       This may be true.              In the trial judge's words,

plaintiff's testimony was scattered and, "tenuous at best."                          His

credibility findings imply some of plaintiff's conduct aligned

with   her    "fixed     agenda,"       which    included     among    other    things

"'getting        back'        at   [d]efendant."             The     judge     further

characterized plaintiff as "belligerent" and "fixated."

       That   said,      we    also     cannot    overlook    plaintiff      suffered

health     and    emotional        problems.        Early     in     the   litigation

defendant asserted the necessity to appoint a guardian ad litem

for plaintiff.        In the companion guardianship matter a different

judge conducted a trial and concluded plaintiff was competent.

       In our view, the trial judge is in the best position to

discern whether plaintiff feigned ignorance.                       He did not make

such   a   finding.           Rather,   his     opinion    conveys    plaintiff      was




                                           14                                  A-5829-13T1
fixated on a given set of results on somewhat specific issues,

and "she clearly was stressed beyond her limits."

      Importantly,      despite    his    general        finding   defendant   was

credible,2 and although there is no serious challenge to the fact

the   parties'    living    expenses          exceeded    defendant's   earnings

necessitating supplemental funds unquestionably provided by the

family trusts, the judge rejected defendant's position seeking

plaintiff to share in the obligation to repay the loans.                       This

decision turned on a conclusion defendant did not satisfactorily

meet his obligation to prove he must repay the debts.                          This

conclusion is supported by the record.

      In finding defendant's proofs deficient, the judge noted:

the notes contained no specific terms for interest or repayment;

the trust did not intervene in the litigation to protect its

interest; documents produced lacked specificity as to the total

amounts distributed, which were asserted only by defendant; and

defendant generally held a beneficial interest in the trusts.

Most significant among the judge's findings was the absence of

disclosure   of   the    debts    on   the     2002   and   2004   mortgage    loan




2
     The judge found defendant to be "cooperative, forthcoming
and credible."   He "responded in a candid, straight forward,
direct, non-evasive manner to questions on direct and cross-
examination."



                                         15                              A-5829-13T1
applications         and   the    loan   officer's        lack    of    recollection   to

corroborate defendant's testimony he orally revealed the debts.

    Even        if     plaintiff       were     aware      of    the    borrowings,    as

defendant now argues, the judge determined defendant's claim of

required       repayment         was   neither       binding      nor    determinative.

Rather,    he        scrutinized       the     evidence     and     found   defendant's

assertions of necessary repayment was "not credible."                           We defer

to these supported factual findings, including this credibility

assessment.          Cesare, supra, 154 N.J. at 412.                    Accordingly, we

discern no basis to interfere with the conclusion plaintiff was

not obligated to reimburse these monies.

                                              B.

    Next, in Points II, III, and IV, defendant raises several

arguments attacking the trial judge's valuation and equitable

distribution         of    his    interest      in   the    law     firm.      Defendant

suggests there are factual flaws in the findings and further

seeks reversal based on a misapplication of the law.                            For the

reasons    discussed        below,     we     conclude     the    calculation    of    the

value     of    defendant's        law       practice     and     percentage    interest

granted to plaintiff must be reversed.

    We first recite the pertinent facts.                         Defendant joined his

firm in 1978 when he graduated from Harvard Law School.                                He

specialized in complex tax matters and billed over 2000 hours




                                              16                                A-5829-13T1
each year.      He was named an equity partner on January 1, 1984,

and owned one share of stock.           The firm modified its structure

on January 1, 2013, changing from a professional corporation to

a   limited    liability   partnership.        Defendant    was    required    to

provide    a   $300,000    capital   contribution,       financed    through    a

four-year note.

      Detailed    and     lengthy    testimony    from    the     firm's   chief

administrative      officer    (CAO)     and     the   parties'      respective

forensic accounting experts — Ilan Hirschfeld for plaintiff, and

Thomas J. Hoberman for defendant — described defendant's annual

compensation, and offered opinions on the fair value of his

interest in the law firm as of May 20, 2008, the date plaintiff

filed her complaint for divorce.

      Defendant is a party to a shareholder's agreement with the

firm.     The agreement includes the firm's obligation to purchase

a shareholder's stock when he or she ceases to be employed by

the firm, and defines the formula fixing the amount of payment

for the interest.

      The CAO explained the firm's compensation system for equity

partners, including the calculation of each partner's interest

in the firm, known as the termination credit account (TCA).3


3
     The CAO testified as of the date of trial, based on the
firm's status, partners no longer received W-2s, no longer
                                                  (continued)


                                       17                              A-5829-13T1
Throughout the year, partners received a draw and expenses and

benefits, such as pension contributions, professional dues and

associations, medical claims, as well as professional liability

and life insurances.              These payments reduced an individual's

TCA.      Then, at year-end, the firm's nine-member compensation

committee computed the firm's excess income, which is allocated

among     the     equity        partners,     based      on     a   defined        formula

replenishing          the   TCA   as   of    December         31.      The    allocation

considered billable hours, "evaluated time," that is, collection

of billings, and origination of new business.                           Seniority does

not     affect        compensation,         and   past        performance          may    be

subjectively considered in a specific allocation.                            In essence,

the TCA represents the equity partner's interest in the firm.

       Much     of     defendant's     workload       is      originated      by    fellow

partners.       He was not a significant originator of new clients;

rather, he worked many hours in his highly specialized practice

area.     Defendant received a gross bi-monthly draw, a quarterly

distribution          and   a   variable    amount    of      excess    distributions,

based    on     his    allocation      of   firm's    year-end         net   income,      or

profit.       There also was an interest component attached to the

TCA.


(continued)
participate in the employee pension plan, and are not permitted
to participate in flexible spending plans.



                                            18                                     A-5829-13T1
       Although the firm no longer imposes a mandatory retirement

age, once an equity partner reached age sixty-five, the board of

directors determines whether the individual could continue to

participate in the allocation system or whether he or she moves

to senior status, which is a salaried position.                          If a partner

moved to senior status, the TCA account would not increase by

future allocations, and charges against the account would cause

it to decrease.           The balance of the TCA would be paid out over

four years, when an equity partner left the firm.                        Further, upon

defendant's         completion        of      thirty-years         of      partnership

participation,       he    became     eligible   to     receive    a     discretionary

longevity    bonus     equal     to   twenty-five       percent    of     the   average

salary earned during the five highest of his final ten years of

service.     In May 2008, defendant had not accrued the requisite

vesting period; however, he achieved this milestone on December

31, 2013, prior to trial.

       Hirschfeld's report computed "a calculation of value" of

defendant's interest in the firm, comprised of his TCA "as well

as    the   value    of    his     interest     in    the   enterprise       value     or

goodwill, of the Firm."             The latter intangible "includes, but is

not    limited      to,    it[]s      business       reputation,        national    name

recognition, and established relationship with its clients and




                                           19                                   A-5829-13T1
employees,     all      of      which    provide          value      to     the    Firm       and    its

owners."

      In determining defendant's TCA account, Hirschfeld assumed

defendant    would       retire         at    age       seventy,       used       an    annual       two

percent    growth       period,      and      an        average      of   defendant's          annual

compensation over five years, adjusted for extraordinary non-

reoccurring       distributions.               Also,       an      adjustment          was    made    to

include     the      projected           longevity            bonus.             Following          this

methodology, he calculated the after tax TCA value as $350,830.

Following     cross-examination,                   prior        to    redirect,          Hirschfeld

prepared a revised computation, making several adjustments to

his   original       calculations.                 On     redirect,         he    explained          the

changes     resulted            because        he        agreed       some        of     Hoberman's

challenges.          The        bottom       line       was    a     revised      TCA        value    of

$292,908.

      Goodwill       was     added       as    a    component          of    defendant's            firm

interest.          First,          Hirschfeld             determined             the     reasonable

compensation       of      an    attorney          with       defendant's         education          and

experience.4             The       differential               between         the        reasonable

compensation and the distributions made represented defendant's

4
     Both Hirschfeld and Hoberman relied on data published in
the Survey of Law Firm Economics by Altman Weil Publications,
Inc. as a reference for annual billable hours and reasonable
compensation for those working in defendant's legal specialty;
Hirschfeld used the 2007 issue, while Hoberman used 2008.



                                                   20                                         A-5829-13T1
share of the firm's profits as an owner.                       Earnings based on

historic data were projected to defendant's retirement date at

age seventy adjusted for taxes, using a forty percent tax rate,

then reduced to present value.                Following these calculations,

Hirschfeld opined the goodwill value of defendant's individual

interest in the firm was $1,198,770.                 This too was revised on

redirect, after various corrections were made, to $1,185,304.

     Hoberman's methodology to compute the TCA was similar to

Hirschfeld's; however, his overall opinion of value differed, as

he   concluded     there     was   no    separate      goodwill       interest      in

defendant's    firm      ownership.      In   computing    the       TCA,    Hoberman

noted     equity   partners    contracted       to    subordinate          their   TCA

accounts to the firm's equity credit line.                 Defendant asserted

$98,463 of his TCA was subordinated as security to this line of

credit.      Hoberman opined the billable hours, hourly rate of

compensation,      and   average   billings     as    reported       for    defendant

were consistent with the Altman Weil survey for an attorney

similarly    situated.        It   was    Hoberman's      opinion      defendant's

accrual    basis   income    allocation       was    similar    to   the     reported

reasonable compensation data.            Therefore, the TCA account alone

represented the true value of defendant's interest in the firm,

and there was no additional goodwill component.                  He computed the

TCA account balance on the date of the complaint as $620,000,




                                         21                                  A-5829-13T1
which      discounted       for    present     value     and    adjusted    for     taxes

determined defendant would realize $285,000.

       Hoberman disagreed with Hirschfeld's calculations, noting

areas where Hirschfeld double counted items; added perquisites,

which defendant did not receive; used a depressed reasonable

compensation amount.              Further, Hoberman disagreed the TCA would

steadily increase annually as Hirschfeld assumed and asserted

Hirschfeld wrongly allocated non-reoccurring special allocations

as    if    they    would    be    regularly      received.        Finally,     Hoberman

explained his rejection of the inclusion of goodwill.

       In    his      written      opinion,        the    trial    judge      found    it

"incredible" the firm had no goodwill value.                       Consequently, the

judge rejected Hoberman's opinion.                  Although the opinion recites

Hoberman's          testimony       identifying          errors     and     flaws       in

Hirschfeld's report, the judge, without clarification, accepted

the original unadjusted valued stated by Hirschfeld: that is,

the    TCA    as    $350,830      plus     goodwill      for   defendant's      interest

valued      as     $1,198,077.       The    judge     reduced     the   total     by   the

$300,000 debt defendant incurred to fund his capital account

upon the firm's restructuring.                    He then awarded plaintiff one-

half of the remainder as her equitable interest.

       On     appeal,       defendant       argues       the    court's     conclusion

demonstrates          a     "misunderstanding             of      the     facts,       [a]




                                             22                                 A-5829-13T1
misapplication of the law and . . . [an] abdication of . . .

responsibility          to   reach   a   result     that    was    the    product      of    a

careful      and    reasoned     application        of   the      law    to   the    actual

facts."            He   notes    the     judge       used      Hirschfeld's         initial

calculations of value even though Hirschfeld had changed his

opinion and reduced the total value on redirect.5

     On the issue of goodwill, defendant asserts the trial judge

erred   by    assuming       because     the      firm   had   goodwill,       individual

partners must separately have goodwill.                         Another legal error

defendant raises is the reliance on an unpublished opinion to

justify   the       trial    conclusion.          Moreover,       defendant     maintains

prior New Jersey Supreme Court opinions support his position

that he has no goodwill interest in his firm.                       Alternatively, he

argues the amount fixed for this intangible asset was neither

explained nor supported.

     Defendant          additionally         argues      the      judge       abused      his

discretion         by    awarding        a     fifty-percent        distribution            to

plaintiff, effectively allocating the same dollars three times.

We consider these issues.

5
     Defendant also notes the judge misunderstood the impact of
defendant's required capital contribution and accompanying debt
incurred during the firm's restructuring.        He notes this
benefited him because the judge reduced his interest by the debt
amount even though the debt and the capital account offset each
other.   He makes this point to demonstrate the judge's lack of
understanding of the issues.



                                             23                                     A-5829-13T1
    Trial courts must always remember,

          "[t]he goal of equitable distribution . . .
          is to effect a fair and just division of
          marital [property]."   Steneken v. Steneken,
          183 N.J. 290, 299 (2005) (citation omitted).
          To fashion an equitable distribution award,
          the trial judge must identify the marital
          assets, determine the value of each asset,
          and then decide "how such allocation can
          most equitably be made."          Rothman v.
          Rothman, 65 N.J. 219, 232 (1974).          In
          addition, the judge must consider, but is
          not   limited  to,   the  sixteen   statutory
          factors set forth in N.J.S.A. 2A:34-23.1.
          Fashioning an equitable distribution of
          marital assets and debts requires more than
          simply "mechanical division"; it requires a
          "weighing of the many considerations and
          circumstances . . . presented in each case."
          Stout v. Stout, 155 N.J. Super. 196, 205
          (App. Div. 1977).

          [Elrom v. Elrom, 439 N.J. Super. 444 (App.
          Div. 2015).]

    "A   Family    Part   judge   has   broad   discretion   .   .   .   in

allocating assets subject to equitable distribution."            Clark v.

Clark, 429 N.J. Super. 61, 71-72 (App. Div. 2012).               However,

"discretion   is    not   unbounded     and     is   not   the   personal

predilection of the particular judge."          Catholic Family & Cmty.

Serv. v. State-Operated Sch. Dist. of Paterson, 412 N.J. Super.

426, 442 (App. Div. 2010) (quoting State v. Madan, 366 N.J.

Super. 98, 109 (App. Div. 2004)).        "[T]he authority to exercise

. . . discretion is not an arbitrary power of the individual

judge, to be exercised when, and as, his caprice, or passion, or




                                   24                            A-5829-13T1
partiality may dictate . . . ."                     Ibid. (quoting Madan, supra,

366    N.J.    Super.       at    109).      Rather,       the   nature   of    judicial

discretion requires a trial judge to determine whether to act,

and    if     so,    to     render    a    decision     "guided     by    the   spirit,

principles and analogies of the law, and founded upon the reason

and conscience of the judge, to a just result in the light of

the particular circumstances of the case."                       Smith v. Smith, 17

N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J.

178    (1952).            "Moreover,       the     court    must    provide     factual

underpinnings         and     legal       bases     supporting     the    exercise      of

judicial discretion."              Clark, supra, 429 N.J. Super. at 72.

       We must reverse if we find the trial judge clearly abused

his or her discretion, such as when the stated "findings were

mistaken[,] or that the determination could not reasonably have

been   reached       on    sufficient       credible    evidence     present     in   the

record[,]" or where the judge "failed to consider all of the

controlling legal principles."                    Gonzalez-Posse v. Ricciardulli,

410 N.J. Super. 340, 354 (App. Div. 2009); see also Wadlow v.

Wadlow, 200 N.J. Super. 372, 382 (App. Div. 1985) (reversal is

required      when    the        results    could    not    "reasonably     have      been

reached by the trial judge on the evidence, or whether it is

clearly unfair or unjustly distorted by a misconception of the

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




                                             25                                 A-5829-13T1
(quoting Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div.

1978))).

    It is a settled legal question that intangible goodwill may

attach to an attorney's interest in a professional practice.

Dugan v. Dugan, 92 N.J. 423, 433 (1983).                If found, the value of

goodwill is subject to the equitable distribution claims of the

non-titled spouse.          Ibid.        However, the determination of the

amount ascribed to goodwill is a complex question of fact.

    In this case, the ultimate question that must be resolved

is the value of goodwill defendant had as an equity partner in

the firm.      In concluding goodwill existed as a component of

value of this marital asset, the trial judge failed to make

specific    factual    findings     to     support    the   value   of   attendant

goodwill.     Consequently,         we    are    constrained   to   reverse     the

resultant unsupported conclusions.

    The most straightforward basis for our conclusion is the

value of defendant's interest in his law firm, as stated in the

final   judgment,     was   taken    from       Hirschfeld's   original    opinion

without consideration of Hirschfeld's revised testimony.                     After

initially testifying, Hirschfeld distinctly reduced his initial

calculations of the TCA and the goodwill components, admitting

they were flawed.      Inexplicably, the trial judge overlooked this

evidence and incorporated the original calculations.




                                          26                              A-5829-13T1
      Next, the judge's stated factual findings are predominately

conclusory.          The   judge    recited          the   experts'      testimony         and

acknowledged Hoberman's criticisms of Hirschfeld's calculations.

Thereafter, the judge rejected Hoberman's opinion the value of

goodwill was zero, and ordered the value originally opined by

Hirschfeld.     However, no reasons were offered for why Hoberman's

challenges      to      Hirschfeld's           value       apparently          was      found

unpersuasive, and no analysis or evidence supports the ultimate

conclusion.

      Certainly,       a    factfinder         may     accept      or    reject       expert

testimony in whole or in part, Brown v. Brown, 348 N.J. Super.

466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002), but

there must be a weighing and evaluation of the evidence to reach

whatever     conclusion      may    logically         flow      from    the    aspects      of

testimony the court accepts.             All conclusions must be supported.

      As    Dugan     instructs,        the    start       of    the    examination         of

goodwill considers whether excess earnings exist.                         Dugan, supra,

92 N.J. at 439-40.          This was a highly contested issue on which

the   experts       used   slightly       different          resources        and    offered

greatly     disparate      opinions.          Factual      findings      regarding       this

pivotal question were not provided.

      A    judge's    failure      to   perform       factfinding        "constitutes         a

disservice to the litigants, the attorneys and the appellate




                                              27                                     A-5829-13T1
court."    Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting

Kenwood Assocs. v. Bd. of Adjustment Englewood, 141 N.J. Super.

1, 4 (App. Div. 1976)); R. 1:7-4(a); see also Kas Oriental Rugs,

Inc. v. Ellman, 407 N.J. Super. 538, 562-63 (App. Div.), certif.

denied, 200 N.J. 476 (2009) (requiring a judge, to "find the

facts and state [all] conclusions of law . . . on every motion

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

      The judge also made no findings when fixing plaintiff's

entitlement to defendant's interest in his law firm at fifty-

percent.     The equitable distribution statute "reflects a public

policy that is 'at least in part an acknowledgment that marriage

is a shared enterprise, a joint undertaking, that in many ways

[] is akin to a partnership.'"            Thieme v. Aucoin-Thieme, 227

N.J. 269, 284 (2016) (quoting Smith v. Smith, 72 N.J. 350, 361

(1977)).    But,   equitable   is   not   synonymous   with     equal.     See

Rothman, supra, 65 N.J. at 232 n.6.         Our courts must remain true

to   the   legislative   mandate    expressed   in   N.J.S.A.    2A:34-23.1,

which assures an ordered equitable distribution be "designed to

advance the policy of promoting equity and fair dealing between

divorcing spouses."      Barr v. Barr, 418 N.J. Super. 18, 45 (App.

Div. 2011).    This requires evaluation of unique facts attributed

to each asset.




                                     28                              A-5829-13T1
    The   omission   of    necessary     findings   requires   we    vacate

provisions   in   the     final   judgment    fixing   the     value      and

distribution of defendant's interest in the firm.              To aid the

remand proceeding, the outcome of which will require analysis

and establishment of supporting factual findings necessary to

resolve the complex question of value surrounding a goodwill

component attached to an interest in a law firm, we recite the

authority establishing goodwill as an intangible asset subject

to equitable distribution, as well as the required analysis to

be undertaken by a trial court when fixing goodwill value.

    In Stern v. Stern, 66 N.J. 340 (1975), the Court examined

the defendant's challenges to ordered equitable distribution of

his partnership interest in a "very successful, well-known and

highly respected law firm."       Id. at 344.   In part, the defendant

contested "the propriety of considering his earning capacity as

being a separately identified and distinct item of property."

Ibid.   The Court agreed, stating:

          [A] person's earning capacity, even where
          its development has been aided and enhanced
          by the other spouse, as is here the case,
          should not be recognized as a separate,
          particular item of property within the
          meaning of N.J.S.A. 2A:34-23.      Potential
          earning capacity is doubtless a factor to be
          considered by a trial judge in determining
          what distribution will be "equitable" and it
          is even more obviously relevant upon the
          issue of alimony.     But it should not be




                                    29                              A-5829-13T1
           deemed property as such within the meaning
           of the statute.

           [Id. at 345 (footnote omitted).]

    The Court also discussed the methodology for making this

difficult assessment of value.        Id. at 346.      In this regard, the

partnership agreement was the starting point.

           Generally speaking, the monetary worth of
           this type of professional partnership will
           consist of the total value of the partners'
           capital accounts, accounts receivable, the
           value of work in progress, any appreciation
           in the true worth of tangible personalty
           over and above book value, together with
           good will, should there in fact be any; the
           total so arrived at to be diminished by the
           amount of accounts payable as well as any
           other liabilities not reflected on the
           partnership books.   Once it is established
           that the books of the firm are well kept and
           that the value of partners' interests are in
           fact periodically and carefully reviewed,
           then the presumption to which we have
           referred should be subject to effective
           attack only upon the submission of clear and
           convincing proofs.

           [Id. at 346-47 (footnotes omitted).]

    Although     not    reviewing    the   valuation   of   the   intangible

goodwill   of   the    defendant's   partnership    interest,     the   Court

explained:

           The good[]will of a law firm, for ethical
           reasons, may not be sold or transferred for
           a valuable consideration.     N.J. Advisory
           Committee on Professional Ethics, Op. 48, 87
           N.J.L.J. 459 (1964); Opinion 80, 88 N.J.L.J.
           460 (1965).    It may, however, in a given
           case, be possible to prove that it does



                                     30                             A-5829-13T1
            exist and is a real element of economic
            worth. Concededly, determining its value
            presents difficulties. Rev. Rul. 609, 1968-
            2 Cum. Bull. 327.

            [Id. at 347 n.5.]

    Years        later,    in    Dugan,     the       Court    undertook         review     of

whether goodwill was part of the value of the plaintiff's, a

solo practitioner, law practice, "if so, whether it constitutes

property subject to equitable distribution; and, if so, how it

is to be evaluated."             Dugan, supra, 92 N.J. at 428.                         Noting

intangible       goodwill       is     "essentially       reputation            that     will

probably generate future business," the Court suggested goodwill

encompasses      the   "advantages        of     an    established         business      that

contribute to its profitability," such as a good name, capable

staff, and a reputation for superior services.                             Id. at 429-30.

Further,     "[g]oodwill         can     be      translated          into       prospective

earnings."       Id. at 431.         Emphasizing "future earning capacity,

per se, is not goodwill," the Court held, "[W]hen that future

earning capacity has been enhanced because reputation leads to

probable future patronage from existing and potential clients,

goodwill    may    exist    and      have     value.          When    that      occurs     the

resulting        goodwill       is      property         subject           to     equitable

distribution."         Id. at 433; see also Levy v. Levy, 164 N.J.

Super. 542, 554 (Ch. Div. 1978) ("What is being measured is in

reality    the    capacity      of     repeat     patronage          and   of    a   certain



                                            31                                       A-5829-13T1
immunity to competition to produce earnings beyond the average

for that kind of business.").             The Court explained:

             After   divorce,   the   law  practice   will
             continue to benefit from that goodwill as it
             had during the marriage. Much of the
             economic value produced during an attorney's
             marriage will inhere in the goodwill of the
             law practice. It would be inequitable to
             ignore the contribution of the non-attorney
             spouse to the development of that economic
             resource.    An   individual   practitioner's
             inability to sell a law practice does not
             eliminate existence of goodwill and its
             value as an asset to be considered in
             equitable distribution. Obviously, equitable
             distribution does not require conveyance or
             transfer of any particular asset. The other
             spouse, in this case the wife, is entitled
             to have that asset considered as any other
             property   acquired    during  the   marriage
             partnership.

             [Dugan, supra, 92 N.J. at 434.]

    "For purposes of valuing the goodwill of a law practice,

the true enhancement to be evaluated is the likelihood of repeat

patronage and a certain degree of immunity from competition."

Ibid.     Careful consideration in assigning value to goodwill in a

divorce      action   is    required      because   the   attorney-spouse          is

essentially "forced to pay the ex-spouse 'tangible' dollars for

an intangible asset."           Id. at 435.

    Dugan articulated "one appropriate method to determine the

value   of    goodwill     of   a   law   practice."      Id.   at   139.       This

computation is "accomplished by fixing the amount by which the




                                          32                                A-5829-13T1
attorney's earnings exceed that which would have been earned as

an   employee   by    a   person   with   similar    qualifications    of

education, experience and capability."         Ibid.; see also Levy,

supra, 164 N.J. Super. at 547 ("Where the business is a service

organization then the question of excess [net earnings] requires

comparison of the net earnings with the reasonable value of the

personal   services   which   produced    them.").     The   methodology

followed requires a trial court to

           first,   ascertain   what  an   attorney  of
           comparable experience, expertise, education
           and age would be earning as an employee in
           the same general locale.    The effort that
           the practitioner expends on his law practice
           should not be overlooked when comparing his
           income to that of the hypothetical employee.
           A sole practitioner who, for example, works
           a regular sixty-hour week may have a
           significantly    greater  income    than  an
           employee who regularly works a forty-hour
           week, and the income may be due to greater
           productivity rather than the realization of
           income on the sole practitioner's goodwill.
           Next, the attorney's net income before
           federal and state income taxes for a period
           of   years,   preferably  five,   should  be
           determined and averaged. The actual average
           should then be compared with the employee
           norm.    If the attorney's actual average
           realistically exceeds the total of (1) the
           employee norm and (2) a return on the
           investment in the physical assets, the
           excess would be the basis for evaluating
           goodwill.

                The    excess   is    subject  to    a
           capitalization factor [which is] the number
           of years of excess earnings a purchaser
           would be willing to pay for in advance in



                                   33                           A-5829-13T1
              order to acquire the goodwill.    The precise
              capitalization factor would depend on [a
              variety of factors including] [t]he age of a
              lawyer . . . because . . . goodwill would
              probably terminate upon death. . . .
              Subject to such adjustments, . . . a figure
              close   to  the   true  worth   of   the  law
              practice's goodwill may be obtained.

              [Dugan, supra, 92 N.J. at 439-400 (citations
              omitted).]

       The    Court's     discussion    also    makes    it    clear   this    stated

methodology was not dispositive.               Understanding Dugan involved a

solo    practitioner,        the    Court     acknowledged      other    means        of

reaching      the    required       determination        may    be     appropriate,

including reference to partnership or shareholder agreements,

and consideration of

              the limitations to which we have previously
              alluded, as well as the expertise and age of
              the individual should be factored into any
              evaluation. Moreover, potential federal tax
              consequences   should   be    considered  in
              determining equitable distribution.

              [Id. at 441.]

Here,    a    nuanced     valuation     methodology       is    required      because

defendant is an equity partner in a large firm, who generally is

not responsible for originations, and who is bound by the firm

policies and a shareholder agreement.

       Each    expert      offered      an     opinion    of     the     reasonable

compensation        for    an      attorney     similarly      situated,       having

comparable experience and expertise, to discern the reasonable



                                         34                                   A-5829-13T1
compensation for defendant's services and whether he received

excess   earnings.        Yet,    the      judge     failed    to    analyze     the

differences    in     these    opinions,     which    essentially      drove     the

conclusion     reached    by     each     expert.         Further,     Hoberman's

identification of flaws in Hirschfeld's analysis, some of which

were conceded by Hirschfeld, were completely overlooked.

    We      believe     the    trial     judge     misunderstood       Hoberman's

conclusion, as suggesting goodwill did not exist for the firm.

Actually, Hoberman's opinion asserted the TCA of each equity

partner accounted for any goodwill.              Further, plaintiff, who was

not an originator but a worker in a highly specialized legal

area, was actually paid what a similarly skilled lawyer would be

paid.       Thus,   defendant's        compensation       matched    his   earning

capacity,     nothing     more.          This      view    considered      whether

defendant's "future earning capacity has been enhanced because

reputation leads to probable future patronage from existing and

potential clients" and concluded it did not.                  Accordingly, there

was no additional component of goodwill.              Id. at 433.

    In this matter, any analysis of goodwill must evaluate the

firm's shareholder's agreement to determine whether it is an

appropriate measure of the total firm value, including goodwill.

That formula computes an exiting partner's interest, calculated

as a portion of the firm's excess earnings.                    See Levy, supra,




                                        35                                 A-5829-13T1
164    N.J.    Super.           at     534.         The     Court       must        discern         the

objectiveness        and        accuracy      of    the     formula         and    calculations.

When "it is established that the books of the firm are well kept

and    that    the        value        of     partners'         interests          are    in      fact

periodically        and        carefully      reviewed,         then   the        presumption        to

which we have referred should be subject to effective attack

only   upon        the    submission          of    clear       and    convincing         proofs."

Stern, supra, 66 N.J. at 347.

       Further, when calculating the value of his firm asset, the

analysis      must       consider        defendant's        projected         term       of    future

employment.              As     noted,      Hirschfeld          assumed      defendant           would

continue      as    an        equity   partner          until   age    seventy.           However,

evidence was presented showing defendant's working status may

change once he reaches age sixty-five.                           At that point, the firm

could require defendant to become a salaried employee.                                              The

firm's established policies may make the use of earnings over an

additional five-year period as an equity partner, rather than

senior status inappropriate.                       If so, the calculation used by

Hirschfeld must be considered to discern if they artificially

inflated goodwill.                This area of analysis was not undertaken.

See R. 1:7-4.

       The    value       attributed          by    the     judge      to    defendant's            TCA

interest suffers similar faults.                        First, Hirschfeld modified his




                                                   36                                         A-5829-13T1
initial value, reducing it from $350,830 to $292,908.                                Second,

the   modified      value       assumed       defendant       would   remain    an    equity

partner until age seventy, continuing to work at the same pace

regardless of his advanced age.                     As noted, the facts in evidence

tear at the accuracy of this assumption.                           Finally, no findings

were made to support why Hoberman's computation was rejected in

favor    of   Hirschfeld's.             The    conclusory       determination         by    the

judge is unfounded.

      Once    the       value    of    defendant's       interest      in    his     firm    is

determined,        an   analysis       must    be     made    to   discern     plaintiff's

interest in the asset.                This demands an examination of equitable

factors set forth in N.J.S.A. 2A:34-23.1.                          The Legislature has

mandated: "In every case . . . the court shall make specific

findings      of    fact    on        the   evidence      relevant      to     all    issues

pertaining         to    asset        eligibility        or     ineligibility,          asset

valuation, and equitable distribution, including specifically,

but not limited to, the factors set forth in this section."

Ibid.    Specific to this asset, a measure of consideration must

be given to the lack of intrinsic value associated with any

amount    determined        as    individual          goodwill.        N.J.S.A.        2A:34-

23.1(p); see also Dugan, supra, 92 N.J. at 435.

      For these reasons, the provisions of the final judgment

fixing the value of defendant's interest in his law firm, as




                                               37                                    A-5829-13T1
well as setting plaintiff's equitable interest in this marital

asset,      must   be   vacated    and    the      matter     remanded    for    further

consideration consistent with this opinion.                       We understand the

trial judge has been assigned to a different trial division, and

because certain credibility determinations were made, which are

now set aside as unsupported, we order the matter reassigned by

the Presiding Judge of the Family Part to a new trial judge.                             We

need not further analyze the argument offered by defendant in

Point IX.

       We    reject     as    unavailing       defendant's      argument       that     the

inclusion of properly computed goodwill double counts the same

dollars.       See Steneken, supra, 183 N.J. at 298 (emphasizing

because alimony and equitable distribution serve two separate

purposes, it is not required that "a credit on one side of the

ledger must perforce require a debit on the other side").

       Another     issue      related    to    this    obligation,       set    forth   in

Point       VII,    challenges      the        payment      schedule      to     satisfy

plaintiff's        equitable     distribution         interest,    provided      in     the

July 18, 2014 post-judgment order.                    Although a payment schedule

for   satisfaction       of     equitable      distribution       may    be    equitable

here, the payment provisions must be vacated because the amount

of    the    assets     and    plaintiff's         interest    remains     subject       to

further review.




                                              38                                 A-5829-13T1
                                       C.

       In Point VIII, defendant argues the trial court erred in

distributing his Union Central and Wells Fargo IRAs urging they

were    funded    with    monies     from   a    premarital    bank     account.

Following    trial,      the   judge   accepted    defendant's    proofs      and

concluded the assets were exempt from equitable distribution.

See Valentino v. Valentino, 309 N.J. Super. 334, 338 (App. Div.

1998) ("Any property owned by a husband or wife at the time of

marriage will remain the separate property of such spouse and in

the event of divorce will be considered an immune asset and not

eligible    for   distribution.").          Upon   plaintiff's    motion      for

reconsideration, the judge changed his mind, stating "there was

no believable evidence produced by [d]efendant to establish that

these funds were premarital and the so-called proofs postdated

the marriage by eight years.           Obviously the court was mistaken

in its decision."         This explanation is lacking, and conflicts

with the very detailed credibility findings made by the court,

accepting defendant's trial testimony, as stated in the final

judgment.

       Although no documents verifying the establishment of the

premarital bank account were presented, evidence in the form of

defendant's      testimony     was   presented     on   this   issue.      Also,

defendant admitted two checks from the account and explained




                                       39                               A-5829-13T1
other records were destroyed when the parties' home was flooded.

The checks reflect the asset was titled solely to defendant and

note   payments   were    transferred       to   the    subject    IRA    accounts.

Plaintiff cross-examined defendant in an effort to challenge his

credibility, but provided no testimony of evidence refuting his

claims.

       We are unable to reconcile the statements in the post-

judgment order referencing "so-called proofs" or why defendant's

testimony first found "forthcoming," "candid, straight-forward,

direct," and "non-evasive," was thereafter characterized as "no

believable      evidence."          Testimony      is       evidence,      and    the

contradictory conclusions without more require the provision in

the July 28, 2014 order be vacated and the issues reviewed anew

on remand.

                                       D.

       Lastly, defendant argues the court abused its discretion in

awarding plaintiff counsel fees and expert costs in connection

with     litigation.         The     assessment        of    counsel       fees    is

discretionary. Packard-Bamberger & Co. v. Collier, 167 N.J. 427,

444 (2001); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div.

2004).     In   our    review,     "[w]e    will   disturb     a   trial    court's

determination on counsel fees only on the 'rarest occasion,' and

then only because of clear abuse of discretion."                         Strahan v.




                                       40                                   A-5829-13T1
Strahan,    402     N.J.    Super.     298,      317    (App.    Div.     2008)   (citing

Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

      An allowance for counsel fees is permitted to any party in

a divorce action, R. 5:3-5(c), subject to the provisions of Rule

4:42-9.       The    rule    provides       that       "all    applications       for   the

allowance of fees shall be supported by an affidavit of services

addressing the factors enumerated by RPC 1.5(a)."                         R. 4:42-9(b).

To   determine      whether    and     to     what      extent    such    an    award    is

appropriate, the court must consider:

            (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.

            [R. 5:3-5(c).]

      Here,    the     judge     evaluated           the      statutory     factors      in

rendering his award to plaintiff.                       He ordered defendant pay

$467,793.38 in fees and $23,804.24 in expert costs.                         However, we

determine     certain       findings    were       mistaken,      and     the   need    for




                                            41                                    A-5829-13T1
additional review requires reversal.                Rova Farms, supra, 65 N.J.

at 484.

    First, we comment on certain findings made on this issue,

which    must    be    set    aside.       The    judge    stated   defendant     was

"extremely well-off . . . earning in excess of $1,000,000 per

year."     This finding failed to account for ordered obligations,

which     significantly         impact     defendant's          available   income,

including alimony and equitable distribution payments along with

debts for which defendant was solely responsible.

    Next, the judge found defendant's positions regarding the

loans and the zero goodwill value in his firm evinced badges of

bad faith.       This finding is unsupported.               The existence of the

borrowings      was    not    disputed.      At   issue     was   repayment.      The

position    was       not    fallacious;    rather,       the   proofs   were   found

insufficient.         Further, we reversed the findings regarding value

of defendant's interest in his firm.

    That a party advances a legal position reasonably supported

which the court rejects, is not the equivalent of "bad faith."

Tagayun v. AmeriChoice of N.J., Inc., 446 N.J. Super. 570, 580

(App. Div. 2016) ("When [a party]'s conduct bespeaks an honest

attempt to press a perceived, though ill-founded and perhaps

misguided, claim, he or she should not be found to have acted in

bad faith." (quoting Belfer v. Merling, 322 N.J. Super. 124,




                                           42                               A-5829-13T1
144-45    (App.     Div.),     certif.       denied,      162    N.J.     196    (1999)).

Examples    of    bad    faith       include      misusing      or   abusing     process,

seeking    relief       not   supported      by    fact    or    law,     intentionally

misrepresenting facts or law, or otherwise engaging in vexatious

acts for oppressive reasons.                   Borzillo v. Borzillo, 259 N.J.

Super.    286,    293-94      (Ch.    Div.     1992).        None    of   these    events

occurred.

    Second, certain findings are no longer accurate.                            The judge

considered the amount of fees plaintiff incurred, stated as more

than "$1.7 million," finding plaintiff would be forced to expend

a portion of her equitable distribution to pay her remaining

counsel fees.       However, the supplemental orders entered on June

7, 2016, stipulated plaintiff's indebtedness to her attorneys

stood at $450,000, plus interest.                    This sum is less than the

amount defendant was ordered to contribute.

    Although we reject defendant's suggestion of collusion, the

debt owed by plaintiff is unquestionably relevant to any award

imposed on the adverse party.                Argila v. Argila, 256 N.J. Super.

484, 490 (App. Div. 1992).                   Whatever the reason plaintiff's

counsel consented to compromise the sums claimed due, a burden

placed on defendant for payment must fairly account for the

obligation plaintiff owes.




                                             43                                   A-5829-13T1
      The judge's reliance on the results obtained by plaintiff

has now been altered on appeal as we have vacated the provisions

fixing     the    value      of    defendant's         interest       in   his   law      firm.

Finally, no assessment was made regarding plaintiff's actions,

her     refusal        to     answer,         being     disruptive         and      otherwise

uncooperative, and causing the trial to extend over nineteen

days.

      The    order          cannot       stand        because     it       was   based      on

insufficient, and now, vacated findings.                        The provision ordering

defendant to pay plaintiff's fees is vacated.                               We direct the

issue reviewed on remand.

      We    do    not   disturb         the    ordered    expert       fees.        The    sums

ordered     represent        a    reasonable        allocation        to   assure    a    level

playing field between the parties.                        Kelly v. Kelly, 262 N.J.

Super. 303, 307 (Ch. Div. 1992).

                                              III.

      Plaintiff's cross-appeal argues the trial judge abused his

discretion by refusing to retroactively award her an additional

$300,000     in    pendente        lite   support       for     the    period    June      2009

through June 2014, plus $53,000 to repay a loan she incurred.

We disagree.

      The September 19, 2008 pendente lite support order directed

defendant         to    pay       all     plaintiff's           monthly      shelter        and




                                               44                                    A-5829-13T1
transportation      expenses       as   listed    in    her        Case    Information

Statement    (CIS);     an   additional       $10,000       for    monthly      personal

expenses.     Further,       defendant    remained      obligated         to    maintain

medical     insurance,       pay    plaintiff's        medical       expenses,        and

continue all life and car insurance.              On May 21, 2009, the judge

granted defendant's motion to halve his monthly contribution to

plaintiff's personal expenses, effective June 15, 2009, based on

proof of a decrease in his income.                     Plaintiff did not seek

further   review    or     adjustment     of    support      and     evidence      shows

plaintiff's income increased from the 2009 levels.

       Pendente lite support orders are subject to modification at

the time final judgment is entered.                 Mallamo v. Mallamo, 280

N.J. Super. 8, 12 (App. Div. 1995).              Any changes in the initial

orders rest with the trial judge's discretion.                            Jacobitti v.

Jacobitti, 263 N.J. Super. 608, 617 (App. Div. 1993), aff'd, 135

N.J. 571 (1994).        A retroactive increase in the ordered pendente

lite   support    should     be    considered    when       the    amount      initially

awarded   based    on    limited     information       at    the    inception      of    a

matrimonial matter is later determined "woefully inadequate" or

"obviously unjust" once all facts and circumstances are fleshed

out at trial.      Id. at 617-18.




                                         45                                     A-5829-13T1
    In denying plaintiff's request for an award amounting to an

additional $5000 per month for the period June 2009 through June

2014, the trial judge found:

          Plaintiff has failed to set forth any
          justifiable reason to give her a windfall of
          this nature.    She has not demonstrated any
          additional need. She did not prove that she
          needed a $53,000.00 insurance loan.       The
          $5,000     [pendente    lite]    order    for
          [p]laintiff's [personal] expenses entered in
          May of 2009 was consistent with the marital
          lifestyle.    The evidence established that
          during   the    [pendente  lite]   timeframe,
          [p]laintiff received a far larger share of
          [d]efendant's net income than he did . . . .
          Plaintiff likewise failed to account for the
          income she received during that period.

    Plaintiff's motion for reconsideration of this order was

denied,   as   plaintiff   had   not     "convinced   the   court   of    the

efficacy of her argument."       The judge stated:

               The   alimony   awarded   to    her  of
          $260,000.00 per year is before taxes. After
          taxes are deducted she nets only about
          $175,000.00.    Therefore[,] using her own
          logic, she has received in excess of the
          $144,000.00 lifestyle.    The net result is
          substantially   the  same   considering  the
          passage of 6 years since the original Case
          Information Statement . . . was filed.
          Furthermore, most of the plaintiff's so-
          called financial woes were caused by her.
          She put HIPPA blocks on her medicals
          creating havoc and resulting in unpaid
          bills/judgments against her.    She switched
          the cell phone billing. She switched the EZ
          Pass. None of these actions were necessary.
          Plaintiff failed and refused to confer with
          [d]efendant who was paying those bills.
          Plaintiff also raises tuition issues which



                                    46                              A-5829-13T1
             are self-imposed.     While the pursuit of
             higher   education  is   certainly  a   noble
             endeavor, at some point in your life you
             must pursue your career.    Plaintiff was 58
             at the time of the trial with an advanced
             education and a professional degree and
             license.    There is no evidence that her
             income will be greatly improved by her
             securing an additional advanced degree.

       These findings are supported by the substantial, credible

evidence of record.           We will not intervene.               Beck, supra, 86

N.J. at 496.

                                         IV.

       The consolidated appeal regards a challenge to the denial

of    defendant's      motion   to     dismiss      a    petition,      initiated     by

plaintiff's trial attorneys, to enforce defendant's payment of

the    counsel   fee     award.6       Defendant         posited   counsel       lacked

standing to seek enforcement of the matrimonial order.                         Notably,

plaintiff's counsel subsequently informed the judge plaintiff

was disputing the invoice, and a motion for a charging lien was

filed.      The judge denied defendant's motion, and directed him to

pay   the    ordered    $254,950.03      to    plaintiff's         counsel's      trust

account     within   thirty     days    and    to       comply   with    the    payment

schedule established in the July 28, 2014 order.                          On appeal,

defendant renews his argument.


6
     Also, defendant sought the judge's recusal, an issue we
need not reach.



                                         47                                    A-5829-13T1
      Traditionally, courts in New Jersey have taken a "generous

view of standing."       In re N.J. State Contract, 422 N.J. Super.

275, 289 (App. Div. 2011).          A litigant has standing to prosecute

an action when that litigant has a "sufficient stake and real

adverseness      with   respect      to       the   subject    matter      of     the

litigation, and a substantial likelihood that some harm will

fall upon it in the event of an unfavorable decision."                          In re

N.J. Bd. Of Pub. Utils., 200 N.J. Super. 544, 556 (App. Div.

1985) (citing N.J. State Chamber of Commerce v. N.J. Election

Law Enf't Comm'n, 82 N.J. 57, 67 (1980)).                      Courts will not

entertain      proceedings     brought        by    parties    who   are     merely

interlopers or strangers to a dispute.               Ridgewood Educ. Ass'n v.

Ridgewood Bd. of Educ., 284 N.J. Super. 427, 432 (App. Div.

1995).    A financial interest in the outcome of the litigation

may confer standing.         See Jen Elec., Inc. v. Cty. of Essex, 197

N.J. 627, 644 (2009)

      Defendant challenges plaintiff's counsel's right to move

for   enforcement    when     he   was   contemporaneously       seeking     relief

adverse   to   his   former    client.         Further,   he   argues   to      allow

plaintiff's      attorney     to    petition        for   enforcement      permits

preferential treatment of counsel, who is merely one of many of

plaintiff's creditors.




                                         48                                A-5829-13T1
      In   Williams       v.   Williams,        59    N.J.     229      (1971),    counsel

petitioned     for   an    award     of    counsel      fees      for     legal   services

rendered to the plaintiff in the matrimonial action, who had

passed away. Id. at 231.             Noting there was "no dispute that had

the litigation proceeded to final judgment, [the] plaintiff-wife

would   have   been       entitled    to    an       award   of      counsel      fees   and

costs[,]" the Court found "no logical reason why the wife's

untimely   demise      should     relieve       the    husband       of    an   obligation

which as a matter of policy and justice he ought to bear."                               Id.

at   233-34.     The      Court    also    rejected      the      defendant-husband's

argument to deny counsel's application because the award was

sought directly and counsel lacked standing, stating:

            In our view, petitioners have standing as
            unpaid solicitors. Our cases recognize that
            while counsel fees and costs are awarded to
            the litigant, they properly "belong" to
            counsel and the allowances are to be held in
            trust for the attorneys who furnished the
            services. Thus, the attorney is a party in
            interest to that extent. Here, there is no
            possibility of recovery from the decedent's
            estate; and, unless petitioners are allowed
            to press their application, they will go
            uncompensated and defendant will be unjustly
            enriched   to   that   extent.      In  such
            circumstances,   we  think   it  clear  that
            petitioners should be allowed to proceed in
            their own right.

            [Id. at 234-35 (citations omitted).]

      In Tagliabue v. Tagliabue, 183 N.J. Super. 547 (Ch. Div.

1982), Judge Conrad W. Krafte considered a similar question.



                                           49                                      A-5829-13T1
The defendant objected to the petition by plaintiff's former

attorney for fees, maintaining the attorney "[d]oes not have the

right   to    apply    for        counsel      fees"      and       counsel     "no    longer

represents" the plaintiff because "he voluntarily withdrew from

this case."     Id. at 548.             The defendant's argument was rejected

because: "Equity, which will not permit a wrong to occur without

providing a remedy which is lacking at law, will not be bound by

tight   constraints        imposed      by    the   law       courts     in     establishing

third-party    beneficial          status."             Id.    at    550.        The     judge

concluded:     "This court interprets [Rule] 4:42-9(a)(1) . . . to

create an equitable third-party beneficiary status in favor of

the attorney.       Given such status, he may, independently, pursue

his remedy . . . ."         Ibid.

    The reasoning expressed in these holdings establishes the

interest counsel has in fee awards, based upon proof of the

reasonable     value        of     work       performed         in       the     litigation.

Defendant's recitation of excerpts from Rosenberg v. Rosenberg,

286 N.J. Super. 58, 63-64 (App. Div. 1995) and Poch v. Haag, 105

N.J. Super. 44, 46 (App. Div. 1969), to suggest a counsel fee

award belongs to the client, ignores the context of the cited

passages.     Rosenberg involved a client's attempt to limit the

obligation    due     by    her    to    the      sum    fixed      in   the     matrimonial

litigation     when        assessing         fees       due     from      the     adversary.




                                             50                                       A-5829-13T1
Rosenberg, supra, 286 N.J. Super. at 61-69.                           In dicta, this

court in Poch noted it was "doubtful" the law firm could appeal

pro se, to challenge the amount of a fee award rendered to its

client.        Poch, supra, 105 N.J. Super. at 46.                      These factual

differences provide the context for excerpts, which distinguish

these holdings.

       The right to seek establishment of a counsel fees award

paid by an adversary belongs to the client.                           The client must

present supporting proofs justifying the award.                         The amount of

any award is based on the reasonable value of work performed by

counsel, after a factual analysis guided by Rule 5:3-5(c) and

Rule    4:42-9.      Similarly,       a    challenge      to    the   amount   of   fees

awarded is a claim held by the client.                         Rosenberg, supra, 286

N.J. Super. at 61-69.           However, once a fee award is granted,

Williams identifies the interest of counsel holds in enforcing

payment.       Williams, supra, 59 N.J. at 232.

       Two     aspects    of   this       order     are    troublesome.          First,

counsel's petition sought to receive all sums due to plaintiff

under    the    final    judgment,        not    simply   attorney      fees   awarded.

Absent imposition of a constructive trust or establishment of an

attorney's lien, the awards of all sums due plaintiff as a means

to satisfy counsel fees was too broad a remedy.                          The order in

this regard is error and vacated.




                                            51                                 A-5829-13T1
       Second,       the    petition       discloses       plaintiff      disputed        the

reasonableness of fees billed and elected fee arbitration.                                See

R. 1:20A-3.          Under these circumstances, no action to enforce

payment of the fees can be made pending arbitration.                               R. 1:20A-

6; see Rosenfield v. Rosenfield, 239 N.J. Super. 77, 78 (Ch.

Div. 1989).         If the amount of fees is fixed in arbitration, the

attorney may not seek a statutory lien for a greater sum, R.

1:20A-3(e), with the caveat proceedings to preserve the lien and

restrain disposition of lawsuit proceeds pending arbitration are

permitted.          Thus, no fees should be remitted to counsel from

defendant      or    plaintiff       until    the       arbitration       proceeding       is

competed.

       Here,     plaintiff        and   her       former        attorneys,        after   fee

arbitration was initiated, agreed to a stipulated fee amount;

that   sum     is    less   than     the    amount      defendant     was     ordered      to

contribute.           As    stated      above,      the    reduction         in     the   fee

obligation of plaintiff bears directly on any fee awarded she

receives.        Leavengood v. Leavengood, 339 N.J. Super. 87, 96

(App. Div. 2001).           For all of these reasons the January 9, 2015

determination        must    be    reversed       and     the    matter    remanded       for

additional review in light of our opinion.




                                             52                                     A-5829-13T1
                                      V.

    In summary, regarding Docket No. A-5829-13, we affirm the

provisions    of   the   final    judgment   of   divorce   and   the   post-

judgment orders denying reconsideration of the treatment of the

family loans and adjustments based upon the pendent lite support

order.   We    reverse    the    provision   of   the   final   judgment   and

orders regarding the valuation of defendant's interest in his

law practice as well as the percentage interest accorded to

plaintiff of this asset.           We also reverse the July 28, 2014

order reversing the final judgment's provision concluding the

IRA's were not exempt and the award of counsel fees and costs to

plaintiff.    Each of these issues must be reviewed on remand by a

newly assigned Family Part judge.             The orders challenged in

Docket No. A-2813-14 are reversed, as the amount of attorney's

fees, if any, must be addressed on remand.

    Any issues raised but not otherwise addressed were found to

lack sufficient merit to warrant discussion in our opinion.                  R.

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

    Affirmed in part, reversed in part, and remanded.




                                      53                             A-5829-13T1
