DEBORAH HERTZOFF v. CLAYTON R. HERTZOFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0776-09T3

DEBORAH HERTZOFF,

 

Plaintiff-Respondent,

 

v.

 

CLAYTON R. HERTZOFF,

Defendant-Appellant.

_______________________________

October 27, 2011

 

Argued October 27, 2010 - Decided

 

Before Judges Fuentes, Ashrafi and Nugent.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2465-08.

 

Elliot H. Gourvitz argued the cause for appellant (Gourvitz & Gourvitz, LLC, attorneys; Ari H. Gourvitz, on the briefs).

 

Betsy W. Bresnick argued the cause for respondent (Kozyra & Hartz, LLC, attorneys; Ms. Bresnick, of counsel and on the brief).

 

PER CURIAM

 

Defendant Clayton Hertzoff appeals from portions of a September 1, 2009 Dual Final Judgment of Divorce (JOD) concerning equitable distribution, alimony, child support, emancipation of the parties' older daughter, and the award of attorneys' fees. We affirm in part and reverse in part.

 

I.

The following facts are derived from the trial record. Plaintiff Deborah Hertzoff and defendant Clayton Hertzoff were married on July 28, 1984, and two daughters were born of the marriage. The parties separated on October 15, 2007, at which time their older daughter continued to live with defendant and the younger with plaintiff. Plaintiff filed for divorce on April 29, 2008, and the action was tried in a single day on June 11, 2009.

At the time of trial, plaintiff was fifty-six years old and defendant was fifty-two years old. Their older daughter had finished college but planned to attend school for two more years to become a dental hygienist. The younger daughter had just completed her sophomore year of college.

Plaintiff is a high school graduate who worked in retail before the birth of the parties' children and resumed working part-time after the parties' younger daughter began attending kindergarten. She earned $28,290.83 in 2007, and $31,081 in 2008. In 2009, as of the time of trial, she was working in retail earning $15.75 per hour. Her estimated 2009 income was $38,802.26.

Defendant graduated from college with a Bachelor of Science degree and worked in his family business, which manufactured prosthetic devices. He owned one-third of the business until he and his parents sold it in 2006. He was retained by the new owner, and received a ten-year employment contract that paid him a "special bonus" of $25,000 per year, in addition to his salary. Defendant continued to work for the company after its sale until he and his parents became involved in a dispute with the new owner. They sued the new owner for breach of contract, and he counterclaimed against defendant for violating a non-competition clause. Defendant retained the same lawyer as his parents, and testified he paid the lawyer $35,000 to defend the counterclaim.

Defendant subsequently became employed by New England Orthotic & Prosthetic Systems, LLC, and received a $50,000 signing bonus. In 2007, defendant had a gross income of $183,209.58; in 2008, his gross income was $120,000 plus a bonus of $10,000 earned the previous year; and in 2009, his estimated gross income was $131,063.

The parties' primary asset subject to equitable distribution was the marital home. In 1986 or 1987, plaintiff inherited $89,233.32 from her father's estate and used most of the money as a down payment for the parties' home in Springfield, New Jersey. In 1997, the parties sold the Springfield home and purchased a home in Short Hills, which they sold in August 2007 for a net profit of $877,644.56. Defendant withdrew $54,208.75 from his personal account and used $50,000 as a down payment on a townhouse the parties intended to buy. When they canceled the sale, the money was refunded.

Defendant subsequently withdrew the proceeds from the sale of the Short Hills home from the parties' joint bank account and deposited them into his own account. He made significant withdrawals from the proceeds. He testified that he deposited $150,000 of the proceeds in a college tuition fund for his daughters. He gave his mother $40,000 to repay a loan, though he did not provide documentary proof of the loan. He also paid from the proceeds $18,915 to his parents for a line of credit for the family business, though he produced no documentary evidence that the line of credit was paid off; and he paid off his car loan of $28,000, plaintiff's car loan of $7,330.14, and their older daughter's car loan of $3,504. Finally, defendant paid the balance of a joint credit card debt of $244.02 and legal fees of $10,000 to the parties' attorneys.

Before the trial began, the parties stipulated to various issues. According to the court, the parties submitted the following relevant stipulations:

STIPULATION #2

 

The parties agreed that pension/retirement accounts will be equalized and distributed (without tax consequence) from the defendant to the plaintiff with the "present" values of the plaintiff's at $13,651 (Limited Brands) and $198.87 (Lord & Taylor as of complaint), and of the defendant's at $68,000[;] or a total of $81,849.87, or equally divided $40,924.90. . . .

 

STIPULATION #6

 

The parties agreed the marital residence sold with net proceeds amounting to $877,644.56 and 2007 interest earned of $9,338.20 for a total of $886,982.76. Each party shall receive[] the sum of $300,000 ($600,000) leaving a balance of $286,982.76. The parties agreed the defendant paid the parties' 2007 joint New Jersey income taxes of $1,954 and Federal income taxes of $6,418 or a total of $8,374 with the defendant receiving a New York tax refund of $1,093 as evidence from the 2007 and 2008 joint tax returns. (A net payment of taxes of $7,281. The parties separated on October 15, 2007.) The parties agreed the initial $10,000 for attorney fees for both parties should be deducted (from college fund - sale proceeds) and $54,208 shall be deducted to replace the Belle Saperstein trust funds ($50,000 from ING) and $375 shall be deducted for Beverley Hayes (mediator) for a balance of $202,119.76 to be distributed.

 

STIPULATION #7

 

The parties agree the value of the plaintiff's 2005 Nissan Maxima SL Sedan automobile was $18,373 as of February 7, 2008 and the value of the defendant's 2007 Honda CRV automobile as of June 8, 2009 was $13,425.

 

STIPULATION #8

 

The parties agreed the plaintiff is entitled to permanent alimony to be paid by the defendant based on the duration of the marriage, the parties' lifestyle and the difference in their incomes.

When the trial court rendered its decision, it did not apply many of the parties' stipulations, particularly those stipulations affecting equitable distribution. For example, the trial court did not adhere to the stipulations concerning distribution of the sale proceeds from the marital home, and the stipulations as to the values of the automobiles. The court also awarded plaintiff one-half of defendant's gross 2007 signing bonus despite plaintiff's concession that the distribution should be based on the net bonus after taxes. Finally, the court awarded plaintiff equitable distribution with respect to two insurance policies that plaintiff had not identified as assets subject to equitable distribution.

The trial court awarded yearly alimony of $35,000 to plaintiff, emancipated the parties' older daughter, and allocated responsibility for the younger daughter's unpaid medical expenses. The trial court also awarded plaintiff all of the attorneys' fees she had requested.

II.

Defendant argues that the trial court rejected the stipulations of the parties, displayed favor toward the plaintiff, and erred in its award of equitable distribution, alimony, child support, and attorneys' fees. Defendant also contends the court erred in emancipating the parties' older daughter. Before addressing those issues, we review the principles that guide our scope of review.

Our review of Family Part adjudications is limited. The trial court's factual determinations "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The factual findings and legal conclusions of the court should not be disturbed unless they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ." Ibid. In cases where the evidence is largely testimonial and involves questions of credibility[,] it is appropriate for the reviewing court to defer to the trial court's findings. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Additionally, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

A.

With these principles in mind, we turn to defendant's argument that the trial court abused its discretion by disregarding the stipulations of the parties. Plaintiff concedes that the trial court disregarded some of the stipulations, but contends it did not abuse its discretion in equitably distributing marital assets.

Stipulations serve as a tool that enables parties to avoid the expense, trouble, and delay of adducing proofs on facts that, absent a stipulation, are contestable. Negrotti v. Negrotti, 98 N.J. 428, 432 (1985). As a general rule, "litigants should be held to their stipulations and the consequences thereof." Ibid. Nonetheless, a trial court has the authority to override a stipulation in certain circumstances:

[I]n the rare instances in which the circumstances . . . justify the court's rejection of the parties' stipulation, the party losing the benefit of the stipulation must still receive his day in court with respect to the stipulated issue. This requires that the litigant who is being prejudiced by the court's non-adherence to the stipulation be given the same opportunity to present his proofs as he would have received had the stipulation not been entered on the record.

 

[Id. at 433.]

 

The Court neither defined the standards that "should guide a trial court in determining whether the circumstances are such that a stipulation must be honored," id. at 430, nor delineated the "instances in which the circumstances . . . justify the court's rejection of the parties' stipulation . . . ." Id. at 433. In Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 325 (App. Div.), certif. denied, 152 N.J. 10 (1997), we explained:

Stipulations should be construed with reference to their subject matter and in light of the surrounding circumstances, employing the rules applicable to the construction of contracts. Sheeran v. Sitren, 168 N.J. Super. 402, 413 (Law Div. 1979). However, the terms of a stipulation, if it is to be given effect, must be "definite and certain and it is essential they be assented to by the parties or those representing them." Schere v. Township of Freehold, 150 N.J. Super. 404, 407 (App. Div. 1997).

 

Here, when the trial court rendered its opinion, it did not apply several of the parties' stipulations, thereby depriving the parties of the opportunity to present appropriate proofs. The court's non-adherence to the stipulations primarily affected issues of equitable distribution. Accordingly, we turn to defendant's arguments concerning equitable distribution.

B.

Defendant asserts generally that the trial court failed to make adequate findings concerning equitable distribution of the marital assets. We disagree. The trial court analyzed the law and engaged in factfinding on each asset and debt subject to equitable distribution. The analysis is included in the trial court's lengthy written decision.

We address the stipulations concerning the sale of the marital residence. The parties stipulated that they received net proceeds of $877,644.56, and they also stipulated to numerous deductions from the net sale proceeds, which the trial court disregarded. It appears this issue is moot. In her brief, plaintiff states that "the parties have agreed by way of settlement post-judgment to the stipulated payments, as well as to equally share the 2007 and 2008 interest earned on the house proceeds." Additionally, after oral argument, the parties informed the court that the issues concerning the proceeds of the marital home had been settled. Plaintiff referred to a post-judgment order dated May 28, 2010, which states in paragraph eleven: "The parties have agreed that from the proceeds from the sale of the marital residence, they will deduct $20,000 in legal fees, $375 for the mediator, . . . $7,281 for the net 2007 joint taxes, and that 2007 and 2008 interest shall be credited to each equally."

In view of the parties' representations concerning their settlement of issues regarding the net sale proceeds of the marital residence, we will not address these issues. We note, however, that there appear to be some minor discrepancies among the briefs, the post-judgment order, and the respective letters to the court concerning the settlement. If the parties have any remaining dispute concerning those issues, they may present the dispute to the trial court on remand. Because the trial court did not provide the parties with adequate notice that it would reject the stipulations, thereby depriving them of the opportunity to present appropriate proofs, the parties are entitled to a hearing on any unresolved issues concerning the marital residence.

We turn next to the stipulation concerning the value of the vehicles owned by the parties. The court rejected the stipulation because the vehicles had been valued on different dates. The court noted that plaintiff had not agreed to use those valuations for purposes of equitable distribution because the values would result in different "time of valuations."

It is undisputed that defendant valued his vehicle on a date more than one year after the valuation date of plaintiff's vehicle. The court found that the valuation method was unfair to plaintiff and unconscionable. Consequently, the court used a Motor Trend Blue Book to value the vehicles as of June 30, 2009. After averaging each car's retail and trade-in values, the court determined the value of defendant's vehicle was $23,160 and the value of plaintiff's vehicle was $17,095.

We find no error in the trial court's disregard of the parties' stipulation. The trial court used a different valuation methodology because the parties had not agreed to use the original stipulated values for purposes of equitable distribution and the use of those values was unfair and unconscionable. We find no abuse of the court's discretion.

Nonetheless, the court did not provide the parties with the opportunity to present alternative proofs as to the value of the vehicles, or dispute the court's method of valuing them. The parties did not consent to the court's method of valuation. Accordingly, we remand this issue for the trial court to provide the parties with an opportunity to adduce evidence as to the value of the vehicles.

Although not by formal stipulation, plaintiff conceded that her share of defendant's $50,000 signing bonus should be based on the net $35,000 value after taxes. The court erroneously disregarded this approach. It was appropriate for the parties to consider the tax consequences. In distributing marital property, it is "not . . . improper for a judge to give appropriate heed to legitimate tax considerations . . . where the most equitable disposition of property interests can thereby be best attained." Painter v. Painter, 65 N.J. 196, 212-13 (1974). Although a "hypothetical tax is simply too speculative to permit a reduction in value," Orgler v. Orgler, 237 N.J. Super. 342, 355 (App. Div. 1989), where "the ex-spouse is able to demonstrate the present tax consequence . . . [a] distribution of the net value . . . best attains an equitable distribution of the asset." Id. at 356. Here, defendant had received the bonus by the trial date. The tax consequences were not speculative. The trial court should have honored the parties' stipulation that the net bonus was $35,000. Because this may affect the ultimate distribution of marital assets, we remand for the court to reconsider this issue.

Defendant also argues that none of the bonus should have been subject to equitable distribution because he used the net proceeds for family expenses and tuition. The trial court determined, however, that defendant had failed to provide an accounting of the children's college expenses and had failed to account for the bonus. Defendant presented no documentary evidence to support his testimony. The court made a credibility determination adverse to defendant. The court's determination that the bonus was subject to equitable distribution was not an abuse of discretion.

In addition to his arguments concerning the stipulations, defendant argues the trial court erred by determining that his Metlife and John Hancock insurance policies were subject to equitable distribution when plaintiff had not requested distribution of those assets. In its decision, the court commented that defendant had disclosed a Metlife insurance policy in the parties' 2007 tax return but failed to report the life insurance policy on any pleading or case information statement. The court also determined that defendant did not report his John Hancock insurance retirement fund in his case information statement. Although defendant maintains that the policies were not subject to equitable distribution, he presents no evidence to support his position. Nonetheless, the court did not inform the parties during the course of the trial that it would consider those assets as subject to equitable distribution. The parties have a right to be heard with respect to whether these assets are subject to equitable distribution and their valuation. Thus, on remand, the parties may present proofs with respect to the insurance policies.

Defendant contends that the trial court abused its discretion by failing to give defendant credit for his contribution toward the children's college tuition and the parties' car loans. Although defendant testified he had paid a portion of the children's college tuition, he provided no documentary evidence of such payments. The trial court directed defendant to provide invoices and payment receipts to plaintiff within twenty days of the filing of the JOD, and explicitly stated that if defendant failed to do so, such allocation would be deemed waived. There is nothing in the record to suggest defendant complied with the court's directive. Consequently, the trial court did not abuse its discretion in failing to give defendant credit for such payments.

We have previously addressed the issue of the car loans. Defendant will have the opportunity to present those arguments at the remand hearing.

Defendant also contends that he should have received credit for the $150,000 he set aside for the children's tuition from the proceeds of the sale of the marital residence. The court rejected defendant's contention based on plaintiff's testimony that defendant did not discuss with her setting aside these funds to pay the children's tuition, and she never consented to the arrangement. We discern no basis to interfere with the court's ruling. Defendant did not consult with plaintiff about his intentions to use these funds for this alleged purpose; plaintiff did not agree to this arrangement after the fact; and defendant has not substantiated that tuition payments were actually made.

We also reject defendant's contention that both parties should have been responsible for the debt incurred by the family business, particularly legal fees incurred by defendant to defend against his former employer's claim that he breached a non-competition clause. The court denied this claim noting that defendant had failed to produce the employment contract, the pleadings filed by the parties to the business litigation, and the final judgment or order entered in that litigation. This was another instance where the trial court made a credibility finding adverse to defendant. We see no reason to disturb that credibility finding.

C.

We next address the trial court's alimony award. Defendant argues that the court abused its discretion by awarding $35,000 in yearly alimony when plaintiff only asked for $32,500. We disagree.

"[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed . . . during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). "When support of an economically dependent spouse is at issue, the general considerations are the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at their former standard." Id. at 24 (quoting Lepis v. Lepis, 83 N.J. 139, 152 (1980)). The court must also consider, but is not limited by, the criteria set forth in N.J.S.A. 2A:34-23(b). Id. at 26.

An alimony award is "broadly discretionary." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). Upon review, the Appellate Division "give[s] deference to a trial judge's findings as to [the] issue of alimony, if those findings are supported by substantial credible evidence in the record as a whole." Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Noting that neither party provided for expenses paid while living as an intact family, the court was nonetheless able to determine from the "financial evidence submitted at trial" that the parties enjoyed a middle to upper-middle class lifestyle of a family earning an annual gross income of approximately $160,000. The court also noted that the parties had purchased an exquisite home in an exclusive neighborhood and that plaintiff had described their lifestyle while raising their two daughters in a similar fashion.

The court also considered the criteria set forth in N.J.S.A. 2A:34-23(b) including the duration of the marriage, the parties' ages, the standard of living established in the marriage, the parties' earning capacities, their responsibility for the children, and the history of their financial contributions to the marriage. The court determined that "[t]he defendant's position on 'need' and his 'ability to pay' clearly is antithetical to the evidence presented during the trial."

Defendant does not challenge the trial court's findings as to the disparities in the parties' income. Defendant's main contention is that the trial court erred because it provided more than plaintiff asked for and needed. However, the trial court was not bound by the parties' positions, but instead was required to make an independent determination based upon, among other things, the criteria set forth in N.J.S.A. 2A:34-23(b). As the trial court noted, defendant earns substantially more than plaintiff, and their income disparity is bound to increase. Consequently, plaintiff would not be able to maintain her marital standard of living with what she currently earns. Although defendant's family business was sold, he is gainfully employed and he reported an annualized income of $131,063 while plaintiff only reported an annualized income of $38,802.26. The trial court's alimony award is not an abuse of discretion.

Having said that, we recognize that other issues that are being remanded could possibly affect the alimony determination. Whether that is so, and what if any adjustments must be made, we leave to the sound discretion of the trial court.

D.

We next address defendant's contention that the trial court abused its discretion by emancipating the parties' older daughter. A child's emancipation is "the conclusion of the fundamental dependent relationship between parent and child," Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006), "by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). The determination of whether a child is emancipated is fact sensitive. Ibid. Generally, the question of emancipation hinges upon whether the children have moved "beyond the sphere of influence" of their parents and have the ability and responsibility to support themselves as adults. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

A child's "[a]ttainment of age [eighteen] establishes prima facie, but not conclusive, proof of emancipation." Newburgh, supra, 88 N.J. at 543. Parents are not ordinarily obligated to support their children after they have reached the age of majority. Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). A parent may, however, be required to continue to support a child over age eighteen enrolled in a full-time educational program. See Newburgh, supra, 88 N.J. at 543 (requiring the continuation of support because the "privilege of parenthood carries with it the duty to assure a necessary education for children"); Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972) (holding that the father had an obligation to support his son while he was a full-time college student).

The trial court's ruling that the older daughter is emancipated simply by virtue of her graduation from college is contrary to the Supreme Court's view as expressed in Newburgh, supra, 88 N.J. at 544, that "[i]n appropriate circumstances, parental responsibility includes the duty to assure children of a college and even a postgraduate education . . . ." See also Ross v. Ross, 167 N.J. Super. 441, 446-47 (Ch. Div. 1979) (finding that the father was obligated to pay child support through his twenty-three year old daughter's completion of law school).

In making the determination as to whether child support is required, the court should consider the following factors:

(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

 

[Newburgh, supra, 88 N.J. at 545.]

 

Moreover, because the court found that the older daughter was emancipated as a matter of law, it did not consider plaintiff's support obligations to the older daughter, and the child support calculations as to the younger daughter may have been incorrect. Accordingly, we reverse the trial court's decisions concerning the older daughter's emancipation and the support obligations concerning the younger daughter. On remand, the trial court should evaluate the factors enumerated in Newburgh in deciding whether the older daughter should have been emancipated. Depending on the decision, the trial court may or may not have to recalculate child support for the younger daughter.

E.

Defendant argues that the trial court abused its discretion in awarding plaintiff all of her attorneys' fees, and by not requiring both parties to be responsible for the attorneys' fees of defendant's family business.

An award of counsel fees in civil family actions is permitted by Rule 5:3-5(c) and Rule 4:42-9(a)(1). See Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). While the award is discretionary, the court is required to consider the following factors:

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

[R. 5:3-5(c); see also Mani v. Mani, 183 N.J. 70, 94 (2005).]

 

The trial court considered those criteria. In awarding counsel fees to plaintiff, the trial court explained that defendant had not provided the amount of attorneys' fees he was responsible to pay nor the fees he previously paid to his attorney. The trial court also determined that defendant acted in bad faith by, among other things, not disclosing financial information defining the parties' standard of living during the marriage, by attempting to deflect and dissipate assets under the guise of paying debts and college expenses, and by resorting to self-help in paying expenses in an effort to allocate payments equally between the parties. The trial court also found that the progress of the divorce proceedings were "impeded by the recalcitrance of the defendant in maintaining his position as to income, support and equitable distribution."

We discern no basis to interfere with the trial court's exercise of its discretion in this respect. Plaintiff testified that defendant made financial decisions after the sale of the marital property without consulting her and without her consent. Defendant made a payment to his parents to pay off a loan which he could not substantiate, and failed to disclose assets which appear to have been subject to equitable distribution. Although provided with the opportunity to do so, defendant failed to provide evidence of expenses he claimed he made toward the children's education.

F.

Finally, defendant contends that the trial court was prejudiced against him, improperly restricted his cross-examination of plaintiff, and disregarded his post-trial submissions after stating during the trial that defendant could supplement the record. With the exception of curtailing defendant's cross-examination of plaintiff concerning their older daughter's emancipation, we disagree with those contentions.

Defendant contends that the trial court demonstrated bias and advocated plaintiff's position. Our review of the record does not lead us to that conclusion. The argument warrants no further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant challenges the trial court's curtailment of his examination of plaintiff, and claims the court erred in not permitting him to submit post-trial evidence after inviting him to do so. We disagree.

Generally, "the scope of cross-examination of a witness rests in the discretion of the trial judge. An appellate court will not interfere with the exercise of such discretion unless clear error and prejudice are shown." Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div.), certif. denied, 122 N.J. 391 (1990). Defendant asserts the court limited his cross-examination concerning "several financial issues," but does not specify the exact issues involved and how he was prejudiced by the court's limitations. Although the trial court restricted defendant's cross-examination of plaintiff about financial issues of which she had no knowledge, such a restriction was not an abuse of the trial court's discretion.

With respect to the post-trial evidence, the trial court permitted defendant to submit "whatever documents you said you were going to produce . . . ." The court did not indicate it would permit defendant to offer evidence that had not been discussed during trial. Defendant attempted to submit post-trial documents concerning legal fees and payment of his share of a business credit line. The court did not abuse its discretion by refusing to admit those documents because they had not been identified or discussed during trial.

For the foregoing reasons we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.