                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5156-18T1

LYNNE M. OLT,

          Plaintiff-Respondent,

v.

J. BRIAN OLT,

     Defendant-Appellant.
____________________________

                   Argued telephonically April 1, 2020 –
                   Decided May 1, 2020

                   Before Judges Whipple, Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Gloucester County,
                   Docket No. FM-08-0868-05.

                   Ted M. Rosenberg argued the cause for appellant.

                   Peter M. Halden argued the cause for respondent
                   (Borger Matez, PA, attorneys; Peter M. Halden, on the
                   brief).

PER CURIAM
      In this post-judgment matrimonial matter, defendant (father) appeals from

the February 8, 2019 Family Part order increasing his child support obligation

to $265 per week, the May 24, 2019 order denying his motion for

reconsideration, and the July 22, 2019 order awarding plaintiff (mother)

$12,206.25 in counsel fees. We affirm.

      This matter returns to us for the third time. By way of background, the

parties divorced in 2006 after a seven-year marriage that produced three

children, born in 2000, 2004, and 2005, respectively. They have joint legal

custody of the children and a shared parenting-time schedule, with plaintiff

designated the parent of primary residence and defendant the parent of alternate

residence. When the parties divorced, child support was established at $187 per

week based on defendant's presumptive entitlement to 104 overnights per year,

defendant's $1423 gross weekly income, and plaintiff's imputed income of $375

per week. Plaintiff is a cosmetologist and defendant has a bachelor's degree in

marketing and management. For twenty-one years, defendant was employed as

either a chief financial officer (CFO) or corporate controller by various

companies until he was terminated in March 2009 while earning approximately

$93,000 per year.    Since then, the parties have engaged in extensive and




                                                                        A-5156-18T1
                                       2
protracted post-judgment litigation focused primarily on recalculating child

support.

      We incorporate by reference the facts and procedural history set forth at

length in our first unpublished decision, in which defendant appealed from the

April 20, 2012 order granting "his motion to modify child support based on

changed financial circumstances." Olt v. Olt, No. A-4629-11 (App. Div. Mar.

27, 2013) (slip op. at 1). There, defendant challenged the $45,000 in annual

income imputed to him, and the child-care costs deducted from the income

imputed to plaintiff. Ibid. We affirmed "the decision to deduct child-care costs

from plaintiff's imputed income," reversed the "decision to impute income to

defendant" and remanded "for a plenary hearing" because there were "genuine

issues of fact as to whether defendant's unemployment was voluntary and

without just cause." Id. at 8-10.

      We also incorporate by reference the facts and procedural history set forth

at length in our second unpublished decision, in which defendant appealed fro m

the May 6 and July 25, 2016 orders increasing his child support obligation and

awarding counsel fees to plaintiff. L.M.O. v. J.B.O., No. A-5556-15 (App. Div.

Apr. 3, 2018) (slip op. at 1). There, we chronicled defendant's child support




                                                                         A-5156-18T1
                                       3
obligation following the divorce, his termination from employment in March

2009, and the plenary hearing conducted after our first reversal as follows:

            In a June 12, 2009 order, the trial judge recalculated
            child support due to the termination of alimony and
            increased defendant's weekly child support obligation
            to $282, effective May 13, 2009, based on defendant's
            annual gross income as reported in his 2008 W-2 of
            $92,783.24.

                   In an August 7, 2009 order, the judge denied
            defendant's motion for reconsideration. However, in a
            December 10, 2010 order, a different judge granted
            defendant's motion to modify his child support
            obligation based on his unemployment. . . . Noting that
            defendant was "doing the best he can to find
            employment in the current market[,]" the judge reduced
            defendant's weekly child support obligation to $202,
            effective October 26, 2010, . . . based on an imputed
            annual income of $75,000.

                   In February 2012, defendant again moved for a
            child support reduction or suspension based on his
            continued unemployment.          The judge found that
            defendant had been unemployed for three years while
            actively seeking employment in his prior industry, that
            defendant had exhausted his unemployment benefits
            averaging $29,000 per year, and that defendant's only
            source of income was profits from a petroleum
            company and $22,000 in annual gross rental income
            from his New Jersey townhome. After granting
            defendant's motion and imputing annual income to
            defendant of $45,000, in an April 20, 2012 order, the
            judge ordered defendant to pay a total of $204 per week
            in child support, retroactive to February 29, 2012.



                                                                         A-5156-18T1
                                       4
       Defendant appealed the April 20, 2012 order,
challenging the income imputed to him and the child-
care costs deducted from plaintiff's imputed income.
We reversed and remanded for a plenary hearing, which
was conducted on October 31, 2013. Following the
plenary hearing, the judge increased defendant's weekly
child support obligation to $217 for the period February
29 to June 8, 2012, based on gross weekly income of
$923, and to $293 thereafter based on gross weekly
income of $1538. The judge calculated defendant's
income based on his actual earned income at the time
of approximately $26,000 per year, imputed income
from the rental property of $10,000 per year, and
imputed profits from the petroleum business of $12,000
per year, for a total of $48,000 per year. . . .

      ....

       In 2014, defendant again moved for a child
support reduction to $161 per week, retroactive to
November 1, 2012. . . . In a December 19, 2014 order,
a different judge granted defendant's request and
reduced his weekly child support obligation to $161,
allowing for 104 overnights, but found "no justification
to retroactively modify the support award to November
1, 2012" . . . . Instead, the reduced award was effective
October 30, 2014.

      In 2015, defendant moved for reconsideration of
the December 19, 2014 order and recalculation of his
child support obligation, retroactive to November 1,
2012, based upon a substantial change in
circumstances. In a March 13, 2015 order, the judge
denied his reconsideration motion, but granted his
motion to recalculate child support. The judge accepted
defendant's certification that he no longer received
rental income from his New Jersey property and
dissolved his petroleum company on February 19,

                                                            A-5156-18T1
                           5
            2014. Thus, absent the rental income and business
            profits, the judge determined that "defendant may be in
            the midst of changed circumstances," as "he is currently
            in a salaried position earning approximately
            $25,000.00" per year as a pizza-maker. Accordingly,
            the judge reduced defendant's child support obligation
            to $55 per week . . . .

                  On July 7, 2015, plaintiff moved for
            reinstatement of the weekly $161 child support award
            and for an order authorizing her to obtain discovery
            regarding defendant's recent purchase of a home and
            business in Florida. In an August 28, 2015 order, the
            judge denied plaintiff's motion for reinstatement of the
            prior child support award, finding no changed
            circumstances, but allowed plaintiff to undertake
            discovery to develop facts establishing changed
            circumstances.

            [Id. at 2-6.]

      Based on information plaintiff uncovered during discovery, "mainly the

movement of large sums of money in defendant's accounts, show[ing] that

defendant was actively pursuing business ventures requiring access to capital,"

the judge "implicitly found a change in circumstances warranting a modification

of child support" and "reinstated the weekly child support award of $161,

effective February 17, 2016." Id. at 10, 15. "The judge could not reconcile how

defendant obtained such large loans without an underlying—and yet

undisclosed—asset or continuous income stream, and rejected defendant's

explanations." Id. at 15. However, "[b]ecause the judge questioned defendant's

                                                                       A-5156-18T1
                                       6
candor, she made critical credibility determinations about defendant's proofs

without conducting a plenary hearing." Ibid. Defendant appealed, arguing the

judge erred by making factual findings about his current income without setting

a discovery schedule and conducting a plenary hearing. Id. at 13. We agreed

and reversed and remanded "for a plenary hearing with discovery within the

judge's discretion." Id. at 16-17.

      On the remand, Judge William F. Ziegler entered a discovery order on

June 22, 2018, directing the parties to "exchange interrogatories and take each

other's depositions, third party depositions or any other normal discovery

method." The judge also ordered both parties to file "[r]evised and updated Case

Information Statements [CIS] . . . outlining not only what the circumstances

were in 2015-2016, but through to the present." After discovery was completed,

the judge conducted a two-day plenary hearing during which both parties

testified. Numerous documentary exhibits were also moved into evidence.

      Following the hearing, on February 8, 2019, the judge issued an order and

accompanying sixteen-page written opinion, increasing defendant's child

support obligation to "$265 per week . . . retroactive to February 17, 2016." In

the opinion, which we incorporate by reference, the judge made detailed

credibility determinations, factual findings, and legal conclusions. We highlight


                                                                         A-5156-18T1
                                       7
the judge's key findings which are pertinent to this appeal. Preliminarily, the

judge noted that based on defendant's "Social Security earnings statement[s],"

his gross annual earnings from 2010 to 2016 ranged from $31,000 in 2010 to

zero dollars in 2011, 2014, and 2016. Defendant "testified that at present he is

a full-time salaried employee with New York [T]ile and [M]arble and earns

$27,300 as a 1099 independent contractor with the potential to eventually earn

commissions." Regarding the "large loans" the prior judge "could not reconcile"

without defendant having an "undisclosed . . . income stream," id. at 15, Judge

Ziegler accepted as "credible" defendant's explanation that he had access to

"multiple old lines of credit[,] . . . all of which preceded his unemployment . . .

in 2009." However, the judge found defendant's "credibility . . . lacking in

several regards" in connection with "the benefits . . . he receive[d] from his

mother."

      In that regard, the judge noted:

            [P]laintiff . . . demonstrated . . . the existence of a bank
            account in trust for the benefit of the defendant owned
            by [his mother]. . . . Those trust funds had an account
            balance of anywhere between $49,050 and $58,000
            during the period of time provided for review. . . .
            [Defendant] acknowledges that he was aware of the
            existence of that bank account which was not disclosed
            on his prior [CIS] nor disclosed to the court at the time
            of the previous proceedings relating to the calculation
            of his child support obligation. His explanation being

                                                                           A-5156-18T1
                                         8
             that he is not a signatory on the account, cannot
             withdraw funds, has no access to said funds and that the
             funds have been established solely by his mother for his
             benefit. Nevertheless[,] I find that he should have
             disclosed the existence of this account at the time of the
             previous proceedings.

      Additionally, according to the judge, "[d]efendant is very close with his

mother and assists her on an almost full-time basis with regard to the acquisition,

renovation and resale of residential properties in the State of Florida." The judge

continued:

             [Defendant] claims that the first time he and his mother
             flipped a property that they made an approximate
             $20,000 profit but that he received nothing. He
             testified that he spends time organizing the various
             subcontractors to perform renovations on various
             properties in Florida but that since he is not familiar
             with building codes, and does not have a Florida
             [g]eneral contractor license, that he is really a glorified
             gopher and that he picks up supplies and generally runs
             errands but is not involved in a hands-on way in the
             renovation of the various real estate in which he resides
             notwithstanding the fact that the properties generally do
             not have certificates of occupancy while he is there.

      The judge explained:

             [Defendant's] claim that the extensive work that he does
             on his mother's behalf is solely to allow him to obtain
             free rent is lacking candor. The defendant is able to fly
             on Spirit Airways no less than [twenty-six] roundtrips
             per year from Florida. When he is in New Jersey he
             stays in a home in Berlin that is owned by his mother.
             He drives a car that is owned by his mother. When in

                                                                           A-5156-18T1
                                         9
     Florida he stays in one of the several properties that are
     in the process of renovation. He lives rent-free in
     Delray Beach[,] Florida. His mother pays all of his
     expenses. He argues that his mother loves him and
     wants to take care of him. He is an approximately
     [fifty]-year-old man with a college degree and three
     children to support.

           ....

            His mother pays for his child support and pays
     for his flights to New Jersey to visit with his daughter.

The judge concluded that

     defendant and his mother have conspired to ensure that
     the defendant never shows any reportable income,
     allowing whatever income is generated as a result of
     their joint enterprise together to be reflected on her
     individual tax return. In essence, the defendant
     receives in-kind contributions because his mother owns
     and pays for everything.

            He claims that he intends to eventually "get back
     on [his] feet" and pay his mother back. Given his age
     and the fact that his children are now aged [eighteen],
     [fifteen] and [thirteen] it strains credibility to believe
     that he will ever pay his mother back. More likely, and
     I find by a preponderance of the evidence, the monies
     that he realizes and which support his lifestyle, funded
     through his mother, will never be repaid back to his
     mother or her estate. Those sums, I find, constitute in-
     kind contributions, not gifts, based upon his labor in
     finding, assisting his mother in the acquisition of,
     managing the renovation of and eventually flipping
     residential properties in the State of Florida.



                                                                  A-5156-18T1
                                10
      In rejecting defendant's characterization of the "benefits as gifts from his

mother," Judge Ziegler explained

            If these are truly gifts one would have expected that the
            defendant's mother would have testified or provided
            proof that the monies really were gifts together with
            evidence of her filed gift tax returns . . . .

                  Moreover, the failure of defendant to call his
            mother as a witness allows me to take an adverse
            inference that her testimony would not have been
            helpful to defendant's cause. [1]

See Torres v. Pabon, 225 N.J. 167, 181 (2016) ("An adverse inference charge

may be warranted when a party's failure to present evidence 'raises a natural

inference that the party so failing fears exposure of those facts would be

unfavorable to him.'" (quoting State v. Clawans, 38 N.J. 162, 170 (1962)));

Washington v. Perez, 219 N.J. 338, 352 (2014) ("When 'a party fails to produce

a witness who is within its power to produce and who should have been

produced,' the adverse inference rule permits the factfinder 'to infer that the



1
  In reaching this conclusion, the judge applied the four factors delineated in
State v. Hill, namely, "that there is a special relationship between the party and
the witness;" "that the witness is available to that party both practically and
physically;" "that the testimony of the uncalled witness will elucidate relevant
and critical facts in issue[;]" and "that such testimony appears to be superior to
that already utilized in respect to the fact to be proven." 199 N.J. 545, 561
(2009) (alteration in original) (quoting State v. Hickman, 204 N.J. Super. 409,
414 (App. Div. 1985)).
                                                                          A-5156-18T1
                                       11
witness's evidence is unfavorable to the party's case.'" (quoting Black's Law

Dictionary 62 (9th ed. 2009))).

      Next the judge determined "the fair value of the services rendered by . . .

defendant to his mother" in "assisting [her] in the flipping of homes" and "the

value of the in-kind contributions" defendant "receives in return." Based on his

review of the evidence, the judge found

            revolving credit card debt incurred by the defendant for
            the purposes of the renovation of properties and for his
            own living expenses totaling $33,947 for
            approximately [twenty-six] weeks which equals $1400
            per week or $72,800 per year. [Defendant] claims that
            his mother pays for all of his expenses, pays for all of
            his flights and gives him the benefit of roughly $5000
            per month in expenses. . . . Taking these things into
            consideration I find that the defendant receives
            approximately $60,000 or more in in-kind contributions
            from his mother either in the form of free rent, airline
            tickets or the payment of his credit cards. Moreover[,]
            he receives the sums tax-free meaning that the average
            annual benefit that his mother pays him in gross dollars
            is approximately $83,333 per year which when tax
            impacted at 28% results in a net payment to defendant
            of $60,000.

                  Moreover, the description of his activities with
            regard to the renovation of the various properties in the
            State of Florida discloses that the defendant is more
            than just a gopher as in to "go for this and go for that"
            but more akin to a construction manager who
            coordinates the various subcontractors towards the end
            that a finished product is created. According to the
            Bureau of Labor Statistics construction managers can

                                                                         A-5156-18T1
                                      12
            expect to earn median pay of approximately $91,000
            per year. Simply put, I find by a preponderance of the
            evidence that defendant is underemployed and has used
            the relationship with his mother to hide the true value
            of his own human capital so as to avoid the payment of
            child support.

                   I therefore find that the evidence supports, by a
            preponderance of the evidence, that the defendant must
            be imputed gross income in the amount of $83,333 per
            year which number is based upon the various exhibits
            and the benefits paid to or on behalf of the defendant
            by his mother. I simply do not believe his testimony
            that his mother is providing him with all of these
            benefits out of love alone. His testimony in this regard
            is not credible in my opinion. When pressed on these
            points on examination by plaintiff's counsel he seemed
            to be both confused in part and evasive at times. For
            purposes of the child support calculation . . .
            [defendant] will be imputed gross income in the amount
            of $83,333 per year.

See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,

Appendix IX-B to R. 5:6A, www.gannlaw.com (2020) (defining gross income

of a parent from which child support is calculated to include "income from"

"gains derived from dealings in property," "an interest in a trust," "the sale of

investments (net capital gain) or earnings from investments," "unreported cash

payments," "the value of in-kind benefits," and "imputed income.").

      Turning to plaintiff's income, the judge explained:

            [P]laintiff testified that she currently works as a special
            education aid[e] within the Moorestown [S]chool

                                                                          A-5156-18T1
                                       13
            District and she earns approximately $17,772 per year
            as reflected on her social security earning statement
            . . . . She acknowledges that she has worked as a
            cosmetologist in the past but has not done that since she
            became a mother approximately [eighteen] years ago.
            She testified and I find reasonably and credibly that the
            job allows her to spend the summers off with her
            children and provides her with medical insurance,
            something the defendant has not recently been able to
            do. On cross-examination it was proffered that if the
            Department of Labor wage compendium were utilized
            for a cosmetologist that she should make more money
            or $29,000 as a median and at 75% she should make
            $38,600 per year. I find the plaintiff's job choice to be
            reasonable under the circumstances. While she could
            make more money in gross dollars as a cosmetologist
            those jobs would not provide the type of benefits,
            including family health insurance coverage which she
            is able to obtain through the Moorestown School
            District. It is not an unreasonable position for a parent
            of primary residence of children who were previously
            young and [who] are now all teenagers to have the
            summers off and have a job wherein the benefits will
            provide for health coverage for the children.

      Utilizing the child support guidelines, the judge calculated defendant's

child support obligation based on "credit for 104 overnights with all three

children," notwithstanding the fact that defendant only "engage[d] in parenting

time with his youngest daughter, . . . now age [thirteen]," because "plaintiff did

not do everything . . . within her power to foster a positive relationship between

. . . defendant . . . and his [two] oldest children." The judge made the award

"retroactive to February 17, 2016," the date of plaintiff's "filing of the motion

                                                                          A-5156-18T1
                                       14
that resulted in . . . [the] May 6, 2016 order" which was the subject of the second

reversal. In support, the judge noted that nothing in N.J.S.A. 2A:17-56.23a,

barring retroactive modification of child support, "bars the retroactive entry of

orders increasing child support where equitable."

      Thereafter, defendant moved for reconsideration, arguing that "because

the court took an improper adverse inference against him for failure to call his

mother to testify at the plenary hearing," "the imputation of income . . . in the

sum of $83,333 [was] palpably incorrect and ignore[d] probative, competent

evidence in the record."         Plaintiff cross-moved for reconsideration of

"defendant's child support obligation," arguing that the combination "of his

salary and his in-kind income," totaling $110,833 annually, should have been

used in calculating the award. Plaintiff also moved for counsel fees, asserting

"it would be unfair and inequitable for [her] to bear the entire burden of legal

fees, given . . . defendant's documented history of untruths, half-truths and

unrelenting efforts to live a grandiose lifestyle while portraying himself as a

basic pau[p]er."

      In a written opinion dated May 24, 2019, after applying the governing

legal principles, the judge denied both motions for reconsideration, concluding

that the court was not "'palpably incorrect or irrational' in its decision," nor failed


                                                                               A-5156-18T1
                                         15
to "consider evidence, or that additional evidence . . . would change the

outcome." See Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super.

299, 310 (App. Div. 2008) ("Reconsideration should be utilized only for those

cases . . . that fall within that narrow corridor in which either 1) the [c]ourt has

expressed its decision based upon a palpably incorrect or irrational basis, or 2)

it is obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence." (alterations in original) (quoting

D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990))). Instead, Judge

Ziegler determined defendant was "merely attempting to take a second 'bite at

the apple' because he [was] dissatisfied with the [c]hild [s]upport figure he [was]

obligated to pay." See Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015)

("[A] motion for reconsideration provides the court, and not the litigant, with an

opportunity to take a second bite at the apple to correct errors inherent in a prior

ruling."). In denying plaintiff's reconsideration motion, the judge determined

"[a]dding [d]efendant's salary to the amount of income he was imputed . . .

would be inconsistent with the imputation itself and also inequitable."

      Turning to plaintiff's motion for counsel fees, applying N.J.S.A. 2A:34-

23, authorizing the award of counsel fees in child support applications based on




                                                                            A-5156-18T1
                                        16
consideration of "the factors set forth in [Rule 5:3-5(c)2], the financial

circumstances of the parties, and the good or bad faith of either party," the judge

determined "a counsel fee award . . . [was] warranted." The judge found that

defendant "acted in bad faith for a significant period of time by hiding income

in an attempt to avoid his obligation to pay [c]hild [s]upport ," but deferred the

determination of the amount of the award pending submission from counsel of



2
    Rule 5:3-5(c) provides that:

              the court should consider, in addition to the information
              required to be submitted pursuant to [Rule] 4:42-9, the
              following factors: (1) the financial circumstances of the
              parties; (2) the ability of the parties to pay their own
              fees or to contribute to the fees of the other party; (3)
              the reasonableness and good faith of the positions
              advanced by the parties both during and prior to trial;
              (4) the extent of the fees incurred by both parties; (5)
              any fees previously awarded; (6) the amount of fees
              previously paid to counsel by each party; (7) the results
              obtained; (8) the degree to which fees were incurred to
              enforce existing orders or to compel discovery; and (9)
              any other factor bearing on the fairness of an award.

Rule 4:42-9(b) requires that an application for counsel fees "be supported by an
affidavit of services addressing the factors enumerated by RPC 1.5(a)." These
factors relate to (1) "the time and labor required"; (2) whether the case will
"preclude other employment" for the attorney; (3) "the fee customarily charged";
(4) "the amount involved and the results obtained"; (5) any time limitations; (6)
"the nature and length of the relationship with the client"; (7) "the experience,
reputation, and ability of the lawyer or lawyers performing the services"; and
(8) "whether the fee is fixed or contingent." RPC 1.5(a).
                                                                           A-5156-18T1
                                        17
"[t]he [c]ertification of [s]ervices . . . to account for all reasonable fees incurred"

in "the plenary hearing" and the "filing of the [present] motion."

      On June 22, 2019, after considering the certification of services, the judge

entered an award "reflect[ing] all hours billed by [plaintiff's attorney] minus

[$2500] to account for [d]efendant's need to financially support the child born

of his current marriage, remand from the Appellate Division, and his current

financial status." In an accompanying written opinion, the judge acknowledged

that both parties "earn minimal [actual] income," are not "in a position to pay

their own counsel fees absent financial hardship," "receive substantial financial

support from their families," and "have accrued tens of thousands of dollars in

counsel fees." However, "[a]ll fees incurred by [p]laintiff . . . were a result of

child support enforcement applications brought on her behalf," and "[p]laintiff

was, in part, victorious in the plenary hearing," and "in [d]efendant's most recent

application for [r]econsideration." The judge continued:

             That being said, the appellate decision which prompted
             redress at the plenary hearing was rendered in favor of
             [d]efendant.     While I did not ultimately accept
             [d]efendant's position at the plenary hearing, I do find
             that the last two [o]rders of this court were a result of
             [d]efendant's successful appeal and should be
             considered when determining the amount of counsel
             fees to be awarded to [p]laintiff.

      That fact notwithstanding, the judge explained:

                                                                               A-5156-18T1
                                         18
            Plaintiff has taken a reasonable and good faith position
            since the commencement of this litigation. Plaintiff has
            filed numerous enforcement applications to compel
            [d]efendant's payment of his child support obligation so
            that the parties' children can benefit from the monies
            made due and payable on their behalf. Defendant has
            filed numerous applications to reduce and or terminate
            his child support obligation. While Defendant is well
            within his rights to do so, the foundation of
            [d]efendant's position in his most recent application
            was one of deceit and overall bad faith. This court
            found that [d]efendant consciously disguised financial
            benefits provided to him by his mother . . . for services
            rendered in her real estate ventures so that he would not
            have to pay child support in the amount pr[e]scribed by
            the court, if at all. Defendant claimed numerous years
            of zero . . . income prior to entry of the February[] 2019
            [o]rder, all the while receiving in-kind contributions
            from his mother in the amount of $83,333.00 per year.
            Defendant did not simply fail to disclose the existence
            of a bank account or fail to disclose the existence of a
            pension in pay status. Defendant consciously conspired
            with his mother to keep income "off the books" so he
            could be relieved, totally or in part, of his child support
            obligation.

      On appeal, defendant argues the "judge abused his discretion by setting

child support . . . retroactively from February 17, 2016"; by imputing "income

of $83,333 per year"; by drawing "an adverse inference that '[his mother's]

testimony would not have been helpful to defendant's cause'" in violation of Hill,

199 N.J. at 561; by determining that "the receipt of gifts from [his] mother"

constituted in-kind contributions; "by not imputing income to . . . plaintiff"; and


                                                                           A-5156-18T1
                                       19
by "[in]appropriately weighing" the applicable factors in awarding counsel fees

to plaintiff. Based on our review of the record and the applicable law, we reject

defendant's contentions and affirm substantially for the reasons expressed by

Judge Ziegler in his thoughtful, cogent, and well-reasoned written opinions. We

add the following comments.

      Our scope of review of Family Part orders is limited. We owe substantial

deference to the Family Part's findings of fact because of that court's special

expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Our

"[d]eference is especially appropriate 'when the evidence is largely testimonial

and involves questions of credibility.'" Id. at 412 (quoting In re Return of

Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Such deference is afforded to

"credibility determinations . . . because the trial judge 'hears the case, sees and

observes the witnesses, and hears them testify.'" Gnall v. Gnall, 222 N.J. 414,

428 (2015) (quoting Cesare, 154 N.J. at 412). Thus, "[a] reviewing court should

uphold the factual findings undergirding the trial court's decision if they are

supported by adequate, substantial and credible evidence on the record."

MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original)

(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).




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      While we owe no special deference to the judge's legal conclusions,

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

"'should not disturb the factual findings and legal conclusions of the trial judge

unless . . . convinced that they are so manifestly unsupported by or inconsistent

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

interests of justice' or when we determine the court has palpably abused its

discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (alteration

in original) (quoting Cesare, 154 N.J. at 412). We will only reverse the judge's

decision when it is necessary to "'ensure that there is not a denial of justice'

because the family court's 'conclusions are [] "clearly mistaken" or "wide of the

mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family

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

      Pertinent to this appeal, "[o]ur case law has consistently held that when a

parent, without just cause, is voluntarily unemployed or underemployed, income

may be imputed to that parent to provide for the child's needs." Caplan v.

Caplan, 182 N.J. 250, 268 (2005). "Imputation of income is a discretionary

matter not capable of precise or exact determination but rather requiring a trial

judge to realistically appraise capacity to earn and job availability." Storey v.

Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). In "apprais[ing] realistically


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[a parent's] potential earning power . . . . our courts have always looked beyond

the [parent's] claims of limited resources and economic opportunity. They have

gone far to compel a parent to do what in equity and good conscience should be

done for [the] children." Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.

1979) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955)).

Accordingly, "[w]hen reviewing decisions granting or denying applications to

modify child support," we "examine whether, given the facts, the trial judge

abused his or her discretion." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (2012).

      Similarly, "the award of counsel fees and costs in a matrimonial action

rests in the discretion of the court." Williams v. Williams, 59 N.J. 229, 233

(1971). When a trial court has made "appropriate findings of fact, a fee award

is accorded substantial deference and will be disturbed only in the clearest case

of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div.

2002) (Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We likewise review the

denial of reconsideration for an abuse of discretion. Cummings v. Bahr, 295

N.J. Super. 374, 389 (App. Div. 1996). "An abuse of discretion 'arises when a

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

established policies, or rested on an impermissible basis."'"          Milne v.

Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex


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Cty. Prosecutor, 171 N.J. 561, 571 (2002)). "'Of course, the exercise of this

discretion is not limitless[,]' and remains guided by the law and principles of

equity."   Jacoby, 427 N.J. Super. at 116 (alteration in original) (quoting

Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part

and modified in part, 183 N.J. 290 (2005)).

      Applying these principles, defendant's arguments reveal nothing "so wide

of the mark" that we could reasonably conclude that a clear mistake was made

by the judge. Contrary to defendant's contentions, we find no abuse of discretion

in the judge's imputation of income, denial of reconsideration, or award of

counsel fees. The record amply supports Judge Ziegler's factual findings and,

in light of those findings, his legal conclusions are unassailable.

      Affirmed.




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