LILLIAN DOBRE v. NIKSA DOBRE

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NOT FOR PUBLICATION WITHOUT THE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-1315-15T2

LILLIAN DOBRE,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

NIKSA DOBRE,

     Defendant-Respondent/
     Cross-Appellant.
_________________________________

              Argued March 6, 2018 – Decided April 20, 2018

              Before Judges Reisner, Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Passaic
              County, Docket No. FM-16-1270-13.

              Peter   R.   Bray  argued   the            cause     for
              appellant/cross-respondent.

              Ronda Casson Cotroneo argued the cause for
              respondent/cross-appellant.

PER CURIAM

        Plaintiff Lillian Dobre appeals, and defendant Niksa Dobre

cross-appeals, from their October 13, 2015 dual final judgment of
divorce (JOD).1       For the reasons that follow, we affirm in part,

and reverse and remand in part.

                                        I.

      The parties married in 2004 and had three children; at the

time of the divorce, their ages were nine, seven, and four.                        In

March 2013, plaintiff filed a complaint for divorce, seeking

dissolution      of   the   marriage,    incorporation        of    the   parties'

prenuptial agreement into the JOD, joint legal and physical custody

of   the   children,    child     support,    and     equitable     distribution.

Defendant's      answer     and     counterclaim        for     divorce      sought

nullification of the prenuptial agreement and other relief.

      Trial   commenced     in    February    2015,    and    spanned     ten   non-

consecutive days, ending in April 2015.                During the trial, the

judge   issued    a   letter     decision    setting    aside      the   prenuptial

agreement.    According to plaintiff, the court issued a written



1
   Plaintiff's amended notice of appeal states she appeals from
the trial court's December 3, 2015 order, and defendant's notice
of cross-appeal lists the trial court's November 6, 2015 order.
Both of these orders pertain to the attorneys' fees award to
defendant and his counsel. Because the parties' briefs clearly
indicate they also intended to appeal from the JOD, we exercise
our discretion and consider the entirety of the parties' arguments.
But see W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 
397 N.J.
Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the
orders designated in the notice of appeal that are subject to the
appeal process and review.").



                                        2                                   A-1315-15T2
opinion in July 2015,2 and on October 13, 2015, the court entered

the JOD.

      In August 2015, plaintiff filed a motion for reconsideration,

and defendant filed a cross-motion for reconsideration.                      The court

addressed the parties'             motions in two orders,               both filed on

November 4, 2015.

      The judge issued a written decision dated November 5, 2015

in connection with the parties' applications for attorneys' fees,

and   by   way   of   a    November      6,       2015   order,   the   court   awarded

attorneys' fees to defendant's counsel, requiring plaintiff "to

pay $59,910 [in] counsel fees to defendant's attorney."                         Shortly

thereafter, plaintiff filed a notice of appeal, and defendant

filed a cross- appeal.

      On   December       3,    2015,    the      court   conducted     a   hearing    on

plaintiff's motion for a stay and defendant's application for

entry of judgment.             Following the hearing, the court issued two

orders — one entered judgment against plaintiff in favor of

defendant's attorneys for the $59,910 counsel fee award and the

other entered judgment against plaintiff in favor of defendant for

$300,459,    representing          the    equitable        distribution      owing     to

defendant.       The judge further denied plaintiff's motion for a



2
    The opinion contained within the record lacks a date.

                                              3                                 A-1315-15T2
stay, but stated he would grant a stay if plaintiff posted a bond.

This occurred, and the judge entered an order granting a stay

pending the outcome of this appeal.

     On April 8, 2016, while the instant appeal remained pending,

plaintiff moved to correct an error in the attorneys' fee award;

defendant filed a cross-motion on a related issue.           The trial

judge stated he was "incorrect on the law," because the attorneys'

fees order should have been entered in favor of defendant, not his

attorney.   However, the judge stated he lacked jurisdiction to

revise the mistake because of this pending appeal.       Defendant's

trial counsel filed a motion to intervene, which the judge denied.

                                  II.

     Appellate "review of a trial court's fact-finding function

is limited."    Cesare v. Cesare, 
154 N.J. 394, 411 (1998).        "The

general rule is that findings by the trial court are binding on

appeal   when   supported    by   adequate,   substantial,    credible

evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs

Ins. Co. of Am., 
65 N.J. 474, 484 (1974)).      This is particularly

true in matters emanating from the Family Part, because of its

special expertise.   Ibid.   Consequently, the factual findings and

legal conclusions reached by the Family Part trial judge will not

be set aside unless the court is "'convinced that they are so

manifestly unsupported by or inconsistent with the competent,

                                   4                           A-1315-15T2
relevant   and   reasonably    credible   evidence    as   to   offend   the

interests of justice' or . . . we determine the court has palpably

abused its discretion."       Parish v. Parish, 
412 N.J. Super. 39, 47

(App. Div. 2010) (quoting Cesare, 
154 N.J. at 412). However, no

special deference is owed to the trial court's conclusions of law.

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378

(1995).

     Moreover, trial courts have broad discretion to allocate

marital assets subject to equitable distribution.          Clark v. Clark,


429 N.J. Super. 61, 71 (App. Div. 2012).             "Where the issue on

appeal concerns which assets are available for distribution or the

valuation of those assets, . . . the standard of review is whether

the trial judge's findings are supported by adequate credible

evidence in the record."         Borodinksky v. Borodinksy, 
162 N.J.

Super. 437, 443-44 (App. Div. 1978).      "[W]here the issue on appeal

concerns the manner in which allocation of the eligible assets is

made," the appellate court reviews for abuse of discretion.              Id.

at 444.    Accordingly, "we will affirm an equitable distribution

as long as the trial court could reasonably have reached its result

from the evidence presented, and the award is not distorted by

legal or factual mistake."       La Sala v. La Sala, 
335 N.J. Super.
 1, 6 (App. Div. 2000).



                                     5                              A-1315-15T2
                                 III.

     On    appeal,   plaintiff   challenges   the   court's   decision

nullifying their prenuptial agreement, along with the court's

rulings on equitable distribution, child support, and attorneys'

fees.     She also contends the judge erred in requiring immediate

payment of the equitable distribution and attorneys' fees awards.

Defendant's cross-appeal challenges the court's failure to adopt

his parenting plan, and contends the court erred in failing to

impute additional income to plaintiff.      We address the arguments,

and their attendant facts, in turn.

  A. Prenuptial Agreement

     The parties met in 2003, and soon after made plans to marry.

Plaintiff testified defendant came to the United States in 1999,

five years before their marriage.       Defendant's first language is

Serbian, but plaintiff maintains defendant could read and write

English.    Plaintiff also speaks Serbian, and the parties conversed

in both languages.

     Defendant testified he was born in Croatia and moved to the

United States in 2001.      He first entered the country on a six-

month tourist visa and then, after the events on September 11,

2001, he had an opportunity to work for a "newspaper-agency from

Montenegro" under a media visa.    Defendant obtained the media visa

with the help of his immigration attorney, George Akst.               He

                                   6                           A-1315-15T2
remained on visa status until obtaining a green card, following

his marriage to plaintiff.

      Plaintiff testified she refused to marry defendant without a

prenuptial agreement, "[b]ecause he wasn't a citizen and [she]

didn't know if he was marrying [her] just for papers or for love."

She claimed she also wanted to retain gifts she received from her

wealthy mother.    Plaintiff testified defendant "was more than okay

with it, because he wanted [to obtain] citizenship."

      Plaintiff owned several properties prior to her marriage to

defendant; on this appeal, the parties dispute the disposition of

two parcels in Totowa — one on Battle Ridge Trail and one on

Francis Street.      Plaintiff bought the Battle Ridge Trail property

with her first husband in 1997; when they divorced in 2002,

plaintiff purchased her first husband's share of the property for

$135,000. At the time of her marriage to defendant, plaintiff

still had a mortgage on the property.

      Plaintiff's mother purchased the Francis Street property – a

two-family   house    –   as   an   investment   property;   in   2003,     she

transferred the property to plaintiff.            Plaintiff's mother paid

off the mortgage on the property sometime around 2005.               According

to   plaintiff,   several      months   before   their   marriage,    she   and

defendant discussed in both English and Serbian those properties,

her debts, and "how things were gifted to [her]."

                                        7                              A-1315-15T2
     Plaintiff testified she hired Robert Nussbaum, an attorney

she did not previously know, to prepare the prenuptial agreement.

The agreement addresses only "[a]ssets and debts," and does not

reference child support.   It states, among other things, that

          [i]n the event that either party herein
          receives additional assets, in his or her name
          alone, by way of gift, devise or bequeath,
          then said assets in said party's name and all
          increments thereto may be kept and retained
          in said sole ownership, enjoyment[,] control
          and power of disposal of said party free and
          clear of any interest rights or claim of the
          other.
               . . . .

          In the event of a[] . . . final divorce
          between the parties hereto, each agrees that
          there shall be no equitable distribution of
          the assets set forth [herein] . . . but each
          shall      keep      and     retain      sole
          ownership . . . free    and  clear   of   any
          interest, rights or claims of the other.

     The agreement also provides, "The parties do further warrant

and represent that a schedule of the assets of each of them is

attached to this agreement and made a part here of." The agreement

contains an attachment, labeled Schedule A, which purports to

identify plaintiff's assets and liabilities.3     The schedule lists

values for the Battle Ridge Trail and Frances Street properties,

with each parcel followed by "(see appraisal)."    The schedule also


3
   The agreement does not contain a schedule listing the assets
and liabilities of defendant.


                                8                            A-1315-15T2
lists values for two bank accounts and a 401(k) account, with each

account listing followed by "(see annexed)."         Notwithstanding the

phrase "see appraisal" and "see annexed," no appraisals or account

statements are attached to the agreement.       The schedule also lists

"Oldja     Developers,   LLC   (Membership     Interest)"     and    "Oldja

Developers, LLC (Stock Interest)" and indicates "unknown value"

for each asset.      The schedule lists two debts for plaintiff (a

mortgage and a credit line).        Finally, the schedule references

plaintiff's 2002 tax return, followed by "(see annexed);" once

again, the referenced document is not attached.

     The     agreement   states    the     parties   "have    each      been

independently represented with respect to the negotiations and

preparation of this agreement"; however, the agreement does not

identify    either   party's   attorney.     Plaintiff   testified      that

defendant hired Akst to review the agreement on his behalf, and

she believed defendant paid the attorney himself.             She further

testified she and defendant signed the agreement at Akst's New

York City office on July 6, 2004, with a notary present.                 She

conceded a Serbian translator was not present during the signing.

     According to defendant, plaintiff told him that he needed to

sign "life insurance paperwork," in the event something should

happen to her, so that the insurance proceeds would "[go] to her

mother," which he "didn't have a problem with."              He claims he

                                    9                               A-1315-15T2
signed the document believing it merely waived any interest in any

life insurance proceeds on plaintiff's life.         Defendant stated he

signed this paper in the kitchen of the Battle Ridge Trail home,

and that no witnesses or notary were present, and that plaintiff's

signature – but no notary stamp – was already on the agreement

when she gave it to him to sign.         Defendant testified that he saw

the four-page prenuptial agreement for the first time in the office

of his attorney during the divorce proceedings.          Defendant further

testified that he and plaintiff never discussed a prenuptial

agreement or plaintiff's assets or liabilities prior to their

marriage.

     Akst, an attorney who stated he practices "exclusively in the

area of immigration law," testified via telephone.4             He recalled

representing defendant for "just a couple of months," helping him

obtain a visa concerning his employment with "a foreign magazine."

Akst also testified he did not represent defendant during the

preparation, review, negotiation, or execution of a prenuptial

agreement.     He further stated plaintiff never came to his office

to   discuss   or   sign   a   prenuptial   agreement,    and   he   had    no

recollection of the parties signing an agreement in his office in

July 2004.     Moreover, he testified he never had an employee with


4
  Plaintiff's attorney advised the court he had "no objection" to
the court receiving this testimony by telephone.

                                    10                               A-1315-15T2
the name indicated on the notary stamp reflected on the prenuptial

agreement.

     Prenuptial    agreements   are     enforceable     assuming       full

disclosure   and   comprehension,     and   absent   unconscionability.

Rogers v. Gordon, 
404 N.J. Super. 213, 219 (App. Div. 2008).

Pursuant to 
N.J.S.A. 37:2-38, the party seeking to invalidate a

prenuptial agreement must prove by clear and convincing evidence

that "[t]he party executed the agreement involuntarily," or the

agreement is unconscionable.     
N.J.S.A. 37:2-38(c) also provides

that an agreement is unconscionable if, before the execution, the

party:

          (1) Was not provided full and fair disclosure
          of the earnings, property and financial
          obligations of the other party;

          (2) Did not voluntarily and expressly waive,
          in writing, any right to disclosure of the
          property or financial obligations of the other
          party beyond the disclosure provided;

          (3) Did not have, or reasonably could not have
          had, an adequate knowledge of the property or
          financial obligations of the other party; or

          (4) Did not consult with independent legal
          counsel and did not voluntarily and expressly
          waive, in writing, the opportunity to consult
          with independent legal counsel.

     Here, the judge voided the prenuptial agreement in a terse

letter opinion.    In fact, the opinion only states, "Dear Counsel:

Please excuse this Brief Letter Decision.        Time constraints [do

                                11                                 A-1315-15T2
not] let me do more.       It is my opinion that the [p]re-[n]uptial

[a]greement shall be set aside and of no further force and effect."

     Without   question,    the   judge's    letter    opinion    failed    to

satisfy the mandate of Rule 1:7-4(a), which requires the trial

court, in all actions tried without a jury, to issue "an opinion

or memorandum decision, either written or oral," setting forth its

findings of facts and conclusions of law.             "[A] judge's failure

to perform the fact-finding duty 'constitutes a disservice to the

litigants, the attorneys and the appellate court.'"                Ricci v.

Ricci, 
448 N.J. Super. 546, 574-75 (App. Div. 2017) (quoting Curtis

v.   Finneran, 
83 N.J. 563, 569-70 (1980)).

     Notwithstanding   the    absence   of   findings     and    conclusions

regarding the enforceability of the prenuptial agreement, we find

the record sufficient for us to exercise original jurisdiction and

affirm the decision setting aside the agreement.                 R. 2:10-5.

"Resort to original jurisdiction is particularly appropriate to

avoid unnecessary further litigation . . . where the record is

adequate to terminate the dispute . . . ."            Vas v. Roberts, 
418 N.J. Super. 509, 523 (App. Div. 2011) (citing Pressler & Verniero,

Current N.J. Court Rules, cmt. on R. 2:10-5 (2011)); see also

Bailes v. Twp. of E. Brunswick, 
380 N.J. Super. 336, 347 (App.

Div. 2005) ("Due to the absence of essential fact-finding in the

trial court's opinion, we have made such findings of fact as are

                                   12                                A-1315-15T2
necessary   to      bring    this    litigation         to   a    conclusion.").           We

recognize, however, that "the exercise of original jurisdiction

should not occur routinely . . . ."                 Roberts, 
418 N.J. Super. at
 524 (citation omitted).

      The   record     here     firmly      convinces        us    of    the     prenuptial

agreement's invalidity.         The record lacks any convincing evidence

that defendant, before signing the agreement, "consulted with

independent      counsel"     or     that    he     "voluntarily          and     expressly

waive[d], in writing, the opportunity to consult with independent

legal counsel."        
N.J.S.A. 37:2-38(c)(4).                  Regarding this issue,

Akst's   testimony        provided    compelling          support       for     defendant's

position and seriously undermined plaintiff's contentions.                                 In

addition,      on     cross-examination,                plaintiff         professed        no

recollection        regarding       most     of     the      important          facts     and

circumstances surrounding the preparation and execution of the

agreement. Our review of the record compels the finding that

defendant did not consult with independent counsel or voluntarily

waive his right to do so before signing the agreement.

     In addition, while plaintiff insisted she provided defendant

with the Schedule A attachments before he signed the prenuptial

agreement   "[eleven]        years    ago,"       she     had     no    explanation       why

defendant   did     not     receive   the        attachments,          before    trial,    in

response to multiple discovery requests.                         Nor does plaintiff's

                                            13                                      A-1315-15T2
appendix include any purported Schedule A attachments, or any

appraisals that predate the prenuptial agreement.                        Based upon our

review of the record, we find that defendant did not receive "full

and    fair   disclosure       of   the    earnings,      property       and    financial

obligations" of plaintiff, as mandated by 
N.J.S.A. 37:2-38(c)(1).

See also Ladenheim v. Klein, 
330 N.J. Super. 219, 224 (App. Div.

2000) (noting the propriety of exercising original jurisdiction

when    the   record     discloses        no    support     for    a   party's       claim).

Accordingly, we affirm the court's nullification of the prenuptial

agreement, concluding that the agreement is "unconscionable,"

based    upon    the    clear    and     convincing       evidence      in     the    record

regarding the absence of both full disclosure and independent

legal counsel. See 
N.J.S.A. 37:2-38(c).

  B. Equitable Distribution of Gifts Received During Marriage

       Plaintiff       next     argues         the   court    erred      in     equitably

distributing      three       properties        plaintiff     acquired        during      the

marriage.       She argues the judge erred in concluding the properties

were not gifts, based upon his incorrect finding that plaintiff's

mother    "did    not    give       up    her    ownership        or   control       of   the

properties."           Alternatively,           plaintiff    argues      that        if   the

properties are not exempt gifts, they should be exempt as assets

held by plaintiff in a resulting trust for her mother.



                                            14                                       A-1315-15T2
    The three properties at issue are: (1) two lots on Union

Boulevard in Totowa; (2) a house on Dewey Avenue in Totowa; and

(3) two condominium units in Sarasota, Florida.          The record

reflects the following facts relating to these properties.

    In July 2009, plaintiff's mother purchased two lots on Union

Avenue for $380,000 and $525,000.    Plaintiff testified that title

to the two properties was placed into an LLC, which she created

per her mother's instructions, and she was the only member.            At

the time of trial, the LLC continued to own the properties.

    Plaintiff   stated   her   mother   paid   the   carrying     costs

associated with the properties by depositing money into the LLC,

then plaintiff, as the property manager, would pay the bills.

Plaintiff alleges she did not contribute any personal or marital

money to the property's carrying costs or the LLC; rather, she

asserts the property was a gift from her mother, made with the

expectation that plaintiff would "leave" the property to her

children.

    On January 31, 2008, plaintiff's mother used her personal

funds to purchase a two-family home on Dewey Avenue for $525,000.

The mortgage was in plaintiff's name, and title was placed into

an LLC plaintiff had created per her mother's instruction; again,

plaintiff was the LLC's only member.       Plaintiff testified the

property was a gift to her from her mother.

                                15                              A-1315-15T2
       Plaintiff managed the property and claimed the rental income

she received for it covered expenses.             She further claimed she

used no personal or marital money to maintain the property;

however, she used the parties' home address as the LLC's business

address.     Defendant testified he had no understanding that the

property was intended as a gift only for plaintiff, and said he

maintained    the    property   by     cutting   the    lawn,   cleaning,      and

responding to tenants' repair requests.

       At her mother's instruction, plaintiff sold the property in

2014.    Plaintiff testified she did not receive any proceeds from

the sale.

       Finally, plaintiff owned two condominium units in Sarasota,

Florida.      Around 2008 and 2011, plaintiff's mother               used her

personal funds to purchase the two units.              Again, at her mother's

instructions, plaintiff placed title to the two units into separate

LLCs, with herself as the sole member.             Both units were rented

through a rental agency, but plaintiff received the rental income

and managed the properties. The rental income covered the expenses

for the properties, and plaintiff testified her mother would cover

any shortfall.

       Plaintiff argues the units were gifts from her mother, and

defendant had no interest in either unit.                Defendant testified

that    he   and    plaintiff   went    to   Florida     on   vacation,     where

                                       16                                 A-1315-15T2
plaintiff's mother showed them a condominium she stated she wanted

to buy for them.   He testified he believed the condominium was for

both him and plaintiff because they were married and he was a part

of the family.

     In his opinion, the judge found the Union Boulevard property

worth $490,000, the Dewey Avenue property worth $475,000, and the

Sarasota condominiums worth $450,000, for a combined total of

$1,415,000.5   He further stated:

               The "legal status" of these properties
          is very, very confusing. . . . It was the
          testimony of the plaintiff and her mother that
          these properties were gifts from the mother
          to the daughter to help ensure the future
          financial safety of the plaintiff and the
          grandchildren.

                 . . . .

          The transfers of property that took place in
          this case could not be gifts as the donor
          (plaintiff's mother) did not give up her
          ownership     or      control     of     the
          property. . . .    Therefore,  these   items
          cannot be counted as gifts and exempt from
          equitable distribution.

     A trial court in an action for divorce may "effectuate an

equitable distribution of . . . property, both real and personal,

which was legally and beneficially acquired by [the parties] or


5
   On plaintiff's motion for reconsideration, the judge reduced
the value of the Dewey Avenue property to $400,000, based upon the
sale of the property. This change reduced the combined total of
all three properties to $1,340,000.

                                17                          A-1315-15T2
either of them during the marriage . . . ."            
N.J.S.A. 2A:34-23(h).

Property acquired "by either party by way of gift, devise, or

intestate succession" is not subject to equitable distribution.


N.J.S.A. 2A:34-23(h).

      "Proof of [a] gift requires evidence of unequivocal donative

intent on the donor's part, actual or symbolic delivery of the

gift's subject matter, and the donor's absolute and irrevocable

relinquishment of ownership."           Dotsko v. Dotsko, 
244 N.J. Super.
 668, 674 (App. Div. 1990) (citation omitted).                   A gift will be

subject to distribution if it was used to finance the marital

lifestyle, or it was placed in an account that regularly received

deposits of income and earnings from the party's employment or

received deposits of other non-exempt monies.                 Tannen v. Tannen,


416 N.J.   Super.    248,   283   (App.    Div.    2010).     The   burden   of

establishing an asset is exempt from equitable distribution rests

with the party who seeks to exclude it.              Pascale v. Pascale, 
140 N.J. 583, 609 (1995).

      We reject the trial judge's finding that the properties were

not gifts.        The record supports the conclusion that plaintiff's

mother intended for plaintiff alone to be the recipient of the

properties.        Plaintiff's mother purchased the properties, and

plaintiff placed title to them into LLCs, with herself as the only

member.      As    such,   plaintiff,    and   not   her   mother,    had   legal

                                        18                              A-1315-15T2
ownership and control of the properties, thus evidencing her

mother's    relinquishment      of     ownership.         Plaintiff's         perceived

"moral"    responsibility       to   obey    her       mother's    wishes       is      not

dispositive of the issue.

     Additionally,       we   have     previously        recognized          that      some

influence over transferred property does not invalidate a gift's

intent.    In Brown v. Brown, 
348 N.J. Super. 466, 480-82 (App. Div.

2002), a husband held outstanding stock in a family-owned business.

The Family Part found the shares were not a gift because the

husband's father retained control of the business.                       Id. at 481.

We reversed, holding the father's continued control of the business

was insufficient to negate the intent to make a gift, and therefore

the stocks were not subject to equitable distribution.                        Ibid.

     Moreover, we note the judge rejected defendant's testimony

that he contributed to the properties in terms of physical labor,

and in the case of the Union Boulevard property, by designing a

commercial    building    for    the    site;     in    fact,     the   judge        found

"defendant's contribution to the properties and maintenance of the

properties    was   relatively       nothing."          Nonetheless,         the     judge

awarded defendant fifteen percent of the value of these properties,

finding    "defendant    is   entitled       to   some    portion       of    equitable

distribution of these very valuable assets."                      We disagree.            As

stated, plaintiff sufficiently established these properties were

                                        19                                         A-1315-15T2
gifts from her mother.         Therefore, because these properties are

not   subject   to    equitable    distribution,   and    the   judge     found

defendant contributed "relatively nothing" to them, we reverse the

equitable distribution award concerning these three properties.

As a result, the trial court on remand shall reduce defendant's

equitable distribution award by $201,000.

  C. Equitable Distribution of Premarital Assets

      Plaintiff      further   contends   the   court   erred   in    awarding

defendant one-half of the increase in the value of the marital

home, Battle Ridge Trail, and an investment property located on

Francis Street in Totowa.         We reject this contention.

      Plaintiff first claims the court erred in awarding defendant

one-half of the increase in value of the Battle Ridge Trail

property.   As previously mentioned, plaintiff purchased her first

husband's share of that property in 2002.               In 2004, after the

parties   married,     plaintiff's    mother    paid    off   the   property's

mortgage and line of credit.

      In 2008, the parties decided to renovate the Battle Ridge

Trail house; they added an addition to the second floor and a

garage behind the house, more than doubling the house's size.

Plaintiff's mother paid for all of the renovations.




                                     20                                 A-1315-15T2
      Prior   to        the   renovations,     defendant    started    his    own

construction company — Aceria Construction, LLC.6                According to

plaintiff, defendant "wanted to oversee the [renovations] so that

his name could be out there that his company is doing it."                    The

parties agreed defendant would oversee the renovations and they

would "all discuss" the subcontractors for it.              Plaintiff further

testified defendant and plaintiff's mother oversaw the renovations

together.

      Defendant narrated a video showing the work he claimed to

have supervised or performed during the renovations.                    He also

prepared a summary of the work he performed on the house and

expenses he incurred.          He testified plaintiff did not contribute

towards those expenses or reimburse his construction company.

      In 2003, plaintiff's mother purchased plaintiff an investment

property on Francis Street in Totowa.                 The mortgage on that

property    was    in    plaintiff's   name,    and   the   property    remained

mortgaged at the time of the parties' divorce trial.                   Plaintiff

testified she paid the Francis Street mortgage and operating

expenses using only the money the property generated; she claimed

defendant did not contribute to the mortgage payment, and she did

not use marital funds to pay the expenses.



6
    Also spelled "Asseria" throughout the record.

                                       21                                A-1315-15T2
      At some undefined point, plaintiff renovated the Francis

Street   property     to   include    installation      of    a    bathroom,    new

flooring, and painting.         Plaintiff testified a contractor started

the renovations, but defendant completed the work.                   She further

testified defendant "would offer" to cut the property's lawn when

it was vacant, but otherwise tenants performed that task. Finally,

she   denied    defendant   performed       "general    maintenance"       on   the

property.

      Defendant testified he was the contractor and supervisor for

the Francis Street renovations.          He claimed to have plastered and

painted the home, renovated its basement, laid brick stairs,

replaced siding, renovated the first floor bathroom, and changed

carpets. He further agreed he worked on the property on "a regular

basis," and performed tenants' requested repairs.                   He testified

he performed these tasks because plaintiff gave him the impression

it was their joint asset for their children.

      Regarding Battle Ridge Trail, the court found "the value of

the improvements to the marital home is $175,000," and found

defendant      was   entitled    to   fifty   percent    of       that   increase.

Regarding the Francis Street property, the court found defendant

"rendered services to this property to bring about [an] increase

in value," and awarded him fifty percent of the $20,000 increase

in value.

                                       22                                  A-1315-15T2
     The burden of establishing that an asset is immune from

equitable distribution rests on the party who asserts that it was

his or her sole property at the time of the marriage.     Pascale,


140 N.J. at 609.   When immunity is established, however, the party

seeking to overcome immunity has the burden of showing that:

          (1) there has been an increase in the value
          of the asset during the term of the marriage;

          (2) the asset was one which had the capacity
          to increase in value as a result of the
          parties' effort (an active immune asset); and

          (3) the increase in value can be linked in
          some fashion to the efforts of the non-owner
          spouse.

          [Sculler v. Sculler, 
348 N.J. Super. 374, 381
          (Ch. Div. 2001) (footnote omitted).]

Any increase in value occurring in an "active immune asset"7 during

the marriage is generally eligible for distribution.    Id. at n.1

(citation omitted).

     We find no error in the judge awarding defendant fifty percent

of the properties' increase in value.      The judge appropriately

determined defendant's sweat equity contributed to the properties'

overall improvement.   Therefore, because the judge's findings are


7
   "Passive immune assets are those whose value increases solely
as a result of market conditions[,] and are not subject to
equitable   distribution.       Active   immune    assets   involve
contributions and efforts by one or both spouses toward the asset's
growth and development which directly increase its value." Ibid.


                                23                          A-1315-15T2
firmly grounded in the record, we find no abuse of discretion, and

affirm.    See Wadlow v. Wadlow, 
200 N.J. Super. 372, 377 (App. Div.

1985).

  D. Attorneys' Fees

     We now consider the trial court's December 3, 2015 order,

which directed plaintiff to pay $59,910 in attorneys' fees to

defendant's counsel and denied plaintiff's request attorneys'

fees.     In his accompanying opinion, the judge apologized for the

"long delay" because of "too much work coming in and not enough

time to get it done." Nonetheless, the judge indicated he reviewed

the certification of defendant's counsel stating defendant had

paid $52,370 towards total fees charged of $160,898; mainly, the

fees involved trial preparation and trial.

     The judge analyzed the nine factors set forth in Rule 5:3-

5(c), and found       that although the parties were "modest wage

earners" and "in relatively the same position" in terms of income,

plaintiff       was     in    a      "better     financial      position

[than] . . . defendant."      The    judge   acknowledged    "plaintiff's

financial condition is totally dependent upon the largess of her

mother," but also noted that plaintiff's interest in several LLCs

was worth "in excess of one million dollars."       Further, the judge

found plaintiff had a "significant amount" of assets, whereas



                                    24                            A-1315-15T2
defendant would leave the marriage with approximately $300,000 and

his construction business, which was of limited value.

     Importantly, the judge recognized defendant's attorneys' fees

far exceeded that of plaintiffs; however, he ultimately determined

it was "fair for . . . plaintiff to pay some of . . . defendant's

fees," but "[n]ot all of the fees as . . . defendant request[ed]."

Accordingly,   the   judge   awarded   plaintiff   to   pay   defendant's

counsel $59,910 — slightly more than one half of defendant's

balance.

     The award of attorneys' fees and costs in matrimonial cases

is a matter committed to the discretion of the trial court;

reversal is appropriate only when the trial court has abused its

discretion, exceeded its authority, or made a determination that

is not supported by the record.     See Williams v. Williams, 
59 N.J.
 229, 233 (1971).        In exercising that discretion, however, the

court   must   comply    with   
N.J.S.A.   2A:34-23,    which    requires

consideration of "the factors set forth in the court rule on

counsel fees, the financial circumstances of the parties, and the

good or bad faith of either party."        Mani v. Mani, 
183 N.J. 70,

94 (2005) (quoting 
N.J.S.A. 2A:34-23).

     Here, we find no abuse of discretion in the judge's award of

attorneys' fees in favor of defendant.       The judge considered the

factors set forth under Rule 5:3-5, and provided adequate reasons

                                  25                              A-1315-15T2
for his decision.      Given plaintiff's significant assets, he found

she was more capable of payment, and further noted plaintiff "was

the cause of some of . . . defendant's work through her non-

production of information."           As a result, he found it "fair

for . . . plaintiff to pay some of . . . defendant's" attorneys'

fees.

      Moreover, although attorneys' fees are typically awarded

directly to the party, it is "a common and accepted practice" for

courts to require payment of an attorneys' fee award directly to

the attorney.       Leavengood v. Leavengood, 
339 N.J. Super. 87, 96

(App. Div. 2001); see also Williams, 
59 N.J. at 234-35 (citation

omitted) (holding although "counsel fees and costs are awarded to

the     litigant,   they   properly    'belong'   to   counsel . . . .").

Accordingly, we affirm the judge's attorneys' fees award and his

requirement that plaintiff pay defendant's counsel directly.

  E. Child Support

      Plaintiff next challenges the court's child support award.

Without citing any case law, she argues the award is inadequate

to meet the children's needs and assumes her mother's financial

generosity will continue.

      In his opinion, the judge noted:

            There are no exceptional needs of the
            children. Fortunately, the three children are
            physically and mentally sound. The standard

                                      26                          A-1315-15T2
          of living and economic circumstances of the
          parties   are   explained    above . . . . The
          children are under ten and of good health.
          The children themselves have no debts or
          liability nor income.     All of the factors
          applied above. A Child Support Guideline is
          attached hereto indicating that child support
          is $153 per week.8 The court has based this
          on the known and identified incomes of the
          parties. The defendant at $65,500 . . . and
          the    plaintiff    $36,439     earned    last
          year . . . . While this court certainly knows
          that there are more monies that were used for
          the children's needs, the court has absolutely
          no way to calculate what that was. The court
          does believe that the generosity of the
          children's grandmother will continue toward
          them.

     The judge computed the parties' income by considering their

income tax information. He found that during most of the marriage,

plaintiff earned income in the $30,000 range as a real estate

broker and property manager for her mother.    He found defendant

was a painter when the parties met and then opened a construction

business that was "never really successful . . . ."   Defendant's

other enterprises during the marriage, including authoring a book

about soccer and writing songs, were also unsuccessful.    However,

in recent years, defendant earned $40 per hour, and stated he

grossed $1200 per week for an annual income of $62,400.    The judge



8
  After defendant moved for reconsideration, the court reduced the
child support award to $117, finding it mistakenly omitted $1450
in rental income for plaintiff.


                               27                            A-1315-15T2
noted that, based on a forty-hour work week, defendant's annual

income would be $83,200.       Finally, after considering the parties'

Case Information Statements, testimony, and tax returns, the judge

found they "led a lifestyle consistent with an income of about

$70,000 to $75,000 per year."

     When determining child support awards, the trial court has

"substantial discretion."       Jacoby v. Jacoby, 
427 N.J. Super. 109,

116 (App. Div. 2012); see also Pascale, F
140 N.J. at 594.           A child

support award that is consistent with the applicable law "will not

be disturbed unless it is manifestly unreasonable, arbitrary, or

clearly contrary to reason or to other evidence, or the result of

whim or caprice."       Gotlib v. Gotlib, 
399 N.J. Super. 295, 309

(App. Div. 2008) (quoting Foust v. Glaser, 
340 N.J. Super. 312,

315-16 (App. Div. 2001)).       "[A]n award based on the guidelines is

assumed to be the correct amount of child support unless a party

proves   to   the   court   that   circumstances   exist   [that]   make    a

guideline-based award inappropriate in a specific case."             Musico

v. Musico, 
426 N.J. Super. 276-285 (Ch. Div. 2012) (citing Child

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

Appendix IX-A to R. 5:6A, www.gannlaw.com (2017)).

     Here, the judge adequately considered the factors set forth

under the child support guidelines, 
N.J.S.A. 2A:34-23(a), which

support his findings.       Moreover, plaintiff's position lacks legal

                                     28                             A-1315-15T2
and evidentiary support, and fails to establish that the needs of

the children are not being met under the current child support

award.   Accordingly, we affirm the judge's child support award.

    F. Parenting Plan

      Defendant appeals the judge's parenting plan, arguing the

judge failed to provide for equal shared physical custody of the

children, as endorsed by Dr. Paul Dasher.9   Defendant requested to

have physical custody of the children on every Wednesday and

Thursday, and alternate weekends.

      The judge's parenting plan provided for defendant to have the

children one weekday per week and alternate weekends.     He found

this schedule "will give each parent significant time with the

children."   In arriving at the parenting schedule, the judge found

Dr. Paul Dasher's report to be "significant" because it was the

only independent source of information as to the children; however,

he noted that the report was "dated material" in that quite some

time had passed since the doctor created the report.

      The judge also expressed concern that "defendant seemed quite

bitter at plaintiff" and "never failed to try and tell this court

something negative about [her]."     In contrast, plaintiff "at no

time impu[g]ned [defendant's] love for his children or his capacity


9
  The record lacks Dr. Paul Dasher's report, which was stipulated
into evidence during the trial.

                                29                          A-1315-15T2
to function as a parent."        The judge further noted "the court

cannot really assess the parent's cooperation, communication,

agreement,    willingness   to   accept     or   provide     for    custody   and

interaction, as the parties still reside together on a daily basis

under the same roof."

      "The touchstone for all custody determinations has always

been 'the best interest[s] of the child.'"             Faucett v. Vasquez,


411 N.J. Super. 108, 118 (App. Div. 2009) (alteration in original)

(quoting Kinsella v. Kinsella, 
150 N.J. 276, 317 (1997)). "Custody

issues are resolved using a best interests analysis that gives

weight to the factors set forth in N.J.S.A. 9:2-4(c)."                     Ibid.

(quoting Hand v. Hand, 
391 N.J. Super. 102, 105 (App. Div. 2007)).

"[T]he decision concerning the type of custody arrangement [is

left] to the sound discretion of the trial court. . . ."                  Nufrio

v. Nufrio, 
341 N.J. Super. 548, 555 (App. Div. 2001) (alteration

in original) (citation omitted).             Therefore, on appeal, "the

opinion of the trial judge in child custody matters is given great

weight . . . ."    Terry v. Terry, 
270 N.J. Super. 105, 118 (App.

Div. 1994).

      We affirm the judge's parenting plan. He thoroughly explained

his   factual   findings,    which        were   supported     by     "adequate,

substantial and credible evidence" in the record.                  Rova, 
65 N.J.

at 484.   Although the plan is not exactly equal, the arrangement

                                     30                                  A-1315-15T2
allows each parent to have significant time with the children, and

is a practical plan for school-aged children.

     To the extent we have not addressed any argument raised by

the parties, we conclude such arguments lack sufficient merit to

warrant comment in a written opinion.   R. 2:11-3(e)(1)(E).

     Affirmed in part, and reversed and remanded in part.            We

remand for entry of an amended JOD to reflect our partial reversal

of the trial court's equitable distribution award.      See supra

Section III.B.   We do not retain jurisdiction.




                               31                             A-1315-15T2