S.W v. G.W

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4063-14T3







              Argued January 9, 2018 – Decided February 20, 2018

              Before Judges Yannotti, Carroll, and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FM-20-2163-11.

              Robert A. Epstein argued the cause for
              appellant (Fox Rothschild, LLP, attorneys;
              Robert A. Epstein, of counsel and on the

              Jeffrey P.      Weinstein argued the cause for
              respondent    (Weinstein Lindemann & Weinstein,
              attorneys;    Jeffrey P. Weinstein, of counsel
              and on the     brief; Donald Schumacher, on the

     Defendant appeals from a December 31, 2014 final judgment of

divorce, an April 17, 2015 order denying reconsideration of certain

aspects of the judgment, and pendente lite orders addressing

discovery relating to a business operated by plaintiff.   We affirm

the pendente lite orders, and affirm in part and reverse in part

the judgment and order denying reconsideration.


     The following facts are taken from the record.       Plaintiff

S.W. and defendant G.W. were married May 19, 1984.    Both parties

are college educated and met when they worked in an investment

bank.   Three children were born of the marriage, all of whom are

adults and were attending college at the time of trial.

     According to his testimony, plaintiff was employed throughout

the marriage initially as a partner at Touche Ross, then Deloitte,

and since 2001, as a Senior Managing Director of Zolfo Cooper

(ZC), a boutique restructuring firm.   Defendant ceased employment

in the late-1980's, after the birth of the parties' first child.

Plaintiff's income financed the family's expenses throughout the


     In 2002, ZC was purchased by Kroll, Inc. (Kroll).    In 2004,

Kroll was purchased by Marsh & McLennan Companies, Inc. (MMC).     In

2008, plaintiff and two other principals financed the purchase of

                                2                           A-4063-14T3
ZC for $27,000,000, with a loan from MMC.              Each principal also

contributed $1,000,000 to capitalize ZC.

     After the acquisition, plaintiff held a one-third ownership

interest in ZC.      However, in the event the company was liquidated

or sold, plaintiff would receive only twenty-three percent based

on his rights in the company's class A and B shares.

     Plaintiff was compensated through a net draw and a year-end

bonus that was paid based upon company performance and plaintiff's

individual performance.           ZC paid all taxes on its partners'

compensation.   The business also paid for plaintiff's firm-related

expenses, such as travel, meals, and entertainment.              It also paid

certain personal expenses for plaintiff, such as insurance and a

gym membership.

     At the same time as the 2008 acquisition, plaintiff executed

a key partner employment agreement.               Under the terms of this

agreement, plaintiff agreed to remain employed at ZC while the

purchase note was outstanding.               During the same time period,

plaintiff's   base      salary   was   set   at   $850,000,    plus   incentive

compensation,     and    reimbursement       of   reasonable    business     and

entertainment expenses.          Plaintiff's aggregate compensation was

capped at $2,000,000 per year.         However, in 2008, 2009, 2012, and

2014, plaintiff's income exceeded the sums in the employment


                                        3                               A-4063-14T3
     Plaintiff testified that ZC's business boomed in 2009, and

earnings approximated $70,000,000.        However, revenue declined in

subsequent years due to the recession and the advent of more

industry competition.       In 2010, revenue fell to approximately

$35,000,000, and then $25,000,000 in 2011.        As a result, in 2010

and 2011, ZC executed forbearance agreements on the purchase note

with MMC.     In 2012, the MMC note was renegotiated.       The new note

tied repayments to the company's income over the course of three

years, through 2014.

     The company also laid off employees, sublet space, and reduced

the income of managing directors in order to remain in business.

Plaintiff's    draw   experienced   a   commensurate   decline   as   well,

falling from $850,000 in 2009, to $600,000 in 2010, and $450,000

in 2011, where it remained through the time of trial.

     Plaintiff's bonuses were $250,000 in 2010 and 2011, $400,000

in 2012, and $800,000 in 2013.      His 2013 bonus was utilized to pay

the children's tuitions, court-ordered support, and the parties'

counsel fees for this litigation.

     The parties' marriage began to decline in 2008.             Defendant

testified she was unaware of the parties' finances.          She claimed

plaintiff hid financial information from her relating to the

marriage.   She also testified he squandered money on extra-marital

                                    4                              A-4063-14T3
affairs.   Ultimately, plaintiff filed a complaint for divorce on

June 20, 2011, ending the parties' twenty-seven-year marriage.

      The parties lived a wealthy lifestyle and did not save.               At

the time of trial, the parties had no retirement accounts because

those amount had been liquidated to fund the marital lifestyle.

The parties purchased a marital residence in 1986 and a residence

on Cape Cod in 1998.          According to the testimony, the judge

concluded both residences "were renovated and enlarged on an almost

constant basis."       The improvements were financed through mortgage

re-financing of both homes.

      The parties owned twelve boats during the marriage including

sailboats and three Boston Whalers.         Plaintiff's Case Information

Statement (CIS) nearest the date of complaint set forth monthly

expenses of $80,853 and defendant's CIS indicated those expenses

were $92,147 per month.          The parties' children attended private

schools, including exclusive boarding schools for high school.

The children's educational and activity fees and expenses were

funded by plaintiff's income and student loans. The family enjoyed

the   benefits    of   country    club,   dinner   club,   and   yacht   club

memberships.     Plaintiff's CIS articulated a family vacation budget

of $60,000 and defendant $150,000 per year.                Defendant spent

$100,000 per year on a photography hobby.

                                      5                              A-4063-14T3
     Even though defendant estimated the family spent between

$1,000,000 and $1,500,000 annually, defendant maintained plaintiff

had secreted funds from the marriage.         The trial judge concluded

defendant had not proved a dissipation because she had admitted

all of plaintiff's income was used to pay the marital expenses.

The judge found "[t]he overwhelming evidence is that these parties

both lived an incredibly profligate lifestyle as evidenced by both

parties['] [CISs] . . . .       In short, it was a budget without any

apparent restraints."

     Pendente lite support for defendant and the children had

initially been set by an October 17, 2011 order, which required

plaintiff    to   pay   defendant   $43,000   per   month   in   unallocated

support.    The court entered an order on January 5, 2012, reducing

pendente lite support to $20,000 per month and also requiring

plaintiff to pay for all shelter expenses associated with the

marital residence.      After the parties' Cape Cod residence was sold

on July 31, 2012, the court again reduced pendente lite support

to $15,000 to account for the absence of expenses associated with

the residence.      The final pendente lite order entered was dated

February 26, 2013.      It required plaintiff to pay defendant $22,000

per month.

     At trial, plaintiff sought a credit for the overpayment of

pendente lite support as well funds defendant withdrew from a

                                      6                              A-4063-14T3
joint account near the filing of the complaint. Defendant conceded

she withdrew funds from a joint account, but claimed she did so

to preserve the funds.    She argued she spent the money to meet her

expenses and the children's needs because plaintiff had not paid

enough support.   At trial, defendant sought a retroactive increase

of pendente lite support.

     Defendant sought an award of permanent alimony that included

a savings component, and an order requiring plaintiff to maintain

life and disability insurance, which named her as beneficiary, to

secure the alimony obligation.      The CIS defendant relied upon at

trial set forth a monthly need of $27,042.        Defendant also argued

plaintiff should be responsible for the entirety of the children's

remaining educational expenses.          Because the children resided

outside of the marital residence, defendant did not seek an award

of child support.

     In addition to the parties' testimony, plaintiff adduced the

testimony of the court-appointed forensic expert David Politziner,

CPA, of Eisner Amper, LLP, and defendant offered testimony from

her expert, Barry Sziklay, CPA, of Friedman, LLP.             The expert

testimony   concerned   valuation   of   the   parties'   largest    asset,

namely, plaintiff's ownership interest in ZC.

     Originally, the parties retained Politziner as their joint

forensic expert to value ZC and plaintiff's ownership interest.

                                    7                               A-4063-14T3
However, before Politziner could render his report, defendant

retained Sziklay.       As a result, the court entered an order that

designated Politziner as a court-appointed expert.

     Politziner testified that he reviewed documentation provided

by ZC for 2008 through 2011.        He accepted the documentation as

accurate, since he was not commissioned to perform a fraud analysis

and because the company's financial statements with the exception

of the 2011 statement, which was in draft form, had been audited.

Politziner also reviewed industry information and general economic

data for purposes of addressing the financial outlook of the firm.

He also spoke with both parties, and with the company's general


     Politziner utilized the income or capitalization of earnings

method to determine the fair value of ZC.             He testified this

methodology assumes the company would continue to be a going

concern and looks to past performance for a projection of future

earnings. Politziner testified the valuation methodology involved

applying "normalization adjustments" to the company's reported

earnings   in   order    to   determine   the   company's   true   income.

Politziner explained he consulted outside sources to determine the

reasonable compensation for ZC's partners as opposed to their

actual compensation.      He also adjusted for the partners' personal

expenses   paid   by    the   business,   including   certain   insurance

                                     8                             A-4063-14T3
expenses,    and   expenses   for   professional     fees,     personal      tax

returns, and estate planning.          Politziner made a normalization

adjustment for ZC's excessive marketing expenses, which he reduced

by twenty-five percent.

     Politziner testified he eliminated $23,000,000 in "good will"

from ZC's balance sheet because it was "really not an asset."                 He

eliminated the remaining debt owed to MMC, with the exception of

$2,000,000,    because   he   opined   it   would   not   be   paid,   and    he

eliminated excess cash on hand.

     Politziner testified that he considered the high volatility

of earnings in the industry, and ZC's fluctuating earnings over

the years.     He determined ZC's substantial earnings in 2009 were

unlikely to recur.       Therefore, he weighted the average earnings

in 2010 and 2011, the date of complaint.             Politziner testified

2011 was the point at which the company's earnings had bottomed,

and he did not expect the downward trend to continue.

     Ultimately, Politziner applied a capitalization rate of 16.45

percent.      Politziner opined plaintiff owned one-third of the

business by virtue of his ownership of one-third of the class A

shares.     Although plaintiff owned class B shares, which meant he

would receive less than a one-third distribution in the event of

a liquidation, Politziner opined a sale of ZC was not in the

offing.     Therefore, he valued the company as of the date of

                                       9                               A-4063-14T3
complaint   at    $7,820,843,    and    plaintiff's   one-third   ownership

interest at $2,607,281.

     Sziklay's testimony highlighted the information he lacked in

order to perform a valuation of ZC.          He testified he was provided

with a PDF of the company's general ledger, which prevented him

from reviewing the details of any particular transaction.                  He

testified he did not have access to the general ledgers of the

entities that comprised ZC.            He also did not have access to

retainer letters for ZC's clientele, bank statements, or detailed

payroll information. He was not permitted to interview plaintiff's

partners or ZC's Chief Financial Officer.

     Notwithstanding, Sziklay valued ZC at $21,162,000 as of the

date of the complaint, and assigned plaintiff a one-third ownership

interest valued at $7,054,000.          Like Politziner, he utilized the

capitalization of earnings methodology to arrive at ZC's fair

value.    Also like Politziner, he did not perceive the class B

shares as diluting plaintiff's one-third ownership interest.

     However, Politziner and Sziklay's valuations differed in the

calculation      of   the   capitalization   rate.    Unlike   Politziner,

Sziklay used the weighted average cost of capital method of

calculating the capitalization rate, which blends a debt and equity

rate.    Politziner explained that blending a debt and equity rate

was inappropriate in evaluating a personal service business, which

                                       10                           A-4063-14T3
generally does not carry much debt.                Politziner found this to be

the   case   with    ZC,   which    did    not     have   debt       other   than    the

acquisition debt.          This fundamental difference resulted in a

capitalization rate used by Sziklay of twelve and one-half percent,

compared with Politziner's sixteen percent.

      Also, Politziner used a weighted average of earnings in 2010

and 2011.    Sziklay used only 2011 earnings.

      Politziner and Sziklay also disagreed with respect to the

appropriateness      of    taking   a    normalization         adjustment     for   the

company's excessive compensation expenses.                      Politziner opined

compensation expenses accounted for seventy-two percent of ZC's

total revenue in 2011, up from                 forty-eight percent in 2009.

Sziklay opined compensation expenses accounted for 77.19% of the

company's total revenue in 2011, up from 53.05% in 2009.

      Thus, Sziklay applied a normalization adjustment for ZC's

excessive    compensation      because        he   concluded     the    compensation

expenses represented a large percentage of revenues.                          Sziklay

opined the expenses were inconsistent with industry standards and

the company's own financial plan, which called for compensation

expenses to account for only fifty percent of total revenue.

Sziklay set compensation at sixty percent of revenue, which he

considered     a    "conservative"        figure.         By    so    reducing      ZC's

compensation       expenses   the       company's     valuation        significantly

                                         11                                    A-4063-14T3

       Politziner agreed ZC's compensation-to-revenue ratio in 2011

was    higher    than   the    industry    standard,    which     he    opined     was

approximately fifty-three percent.              He also conceded the 2011

ratio was greater than the ratio ZC had projected for itself.

However, he did not agree Sziklay's adjustment was appropriate,

because ZC already made significant reductions in its compensation

expenses.            Moreover,      Politziner         accepted        plaintiff's

representation       the   higher   compensation        was   due      to    employee

retention in hopes of generating future business.

       Another     equitable    distribution     issue    involved          plaintiff

seeking a credit for the pendente lite pay down of the mortgage

on the marital residence.         Defendant sought to retain the marital

residence and to deny plaintiff any credit for paying the mortgage

because it had fallen into default pendente lite, albeit the

arrears were later paid by plaintiff.

       The Cape Cod residence was sold in July 2012 for $2,895,000

and yielded net proceeds of $650,794.74.                  Each party received

$100,000 and each counsel received $75,000.              The remainder of the

proceeds    were    deposited     with    plaintiff's    counsel.           Plaintiff

argued for a credit against the sales proceeds for mortgage

expenses paid by him pendente lite that defendant was supposed to

pay.   Defendant argued the mortgage arrears accrued when plaintiff

                                         12                                   A-4063-14T3
was responsible for the mortgage and that the court ordered the

sale of the residence at a low price.             Defendant also sought

credits for expenses incurred to ready the residence for sale and

to move the parties' belongings from the residence after it was


       Plaintiff sought certain items of personalty and furnishings

from    both   residences,   including   family   heirlooms.   Defendant

sought to retain all personalty and furnishings in both residences,

and argued many items were gifted by her grandparents and not

subject to equitable distribution.

       The parties owned five vehicles, each driven by a member of

the family.      Pendente lite, plaintiff sold a 1999 Jeep Wrangler

and utilized the proceeds to purchase a newer vehicle for one of

the children.      Plaintiff also testified he sold an Infiniti CRX

56 pendente lite, and used those proceeds to purchase the vehicle

he was operating at the time of the trial.           Defendant sought a

credit in equitable distribution for the vehicles plaintiff sold

pendente lite.

       Plaintiff testified he incurred substantial counsel fees,

contributed to defendant's counsel fees, paid Politziner's fees,

and paid mediation fees.      Plaintiff sought a contribution for his

counsel fees and an order requiring defendant to bear one-half of

Politziner's fees.      Defendant incurred substantial counsel and

                                   13                            A-4063-14T3
expert   fees   as   well.        She    testified   she    had   contributed      to

Politziner's fees, but argued plaintiff should be responsible for

the   remaining      fees    as   Politziner      had   become      aligned    with

plaintiff's position.        Defendant argued plaintiff should bear the

entirety of her counsel fees and the cost of the mediation.

      The trial concluded on June 30, 2014, after six days of

testimony.      On   December      31,    2014,   the   trial     judge   issued    a

comprehensive written opinion.

      The judge rejected defendant's dissipation claims, finding

"[d]efendant had not carried her burden to prove that [p]laintiff

has purposely defrauded or dissipated the marital assets with an

intent to deprive her of same."               The judge concluded "infidelity

itself is not the same as dissipation."              The judge found plaintiff

had not shown that she had been deprived of any benefit of the

income or assets of the marriage.              He stated:

           The overwhelming evidence is that these
           parties both lived an incredibly profligate
           lifestyle as evidenced by both parties[']
           (sic) [CISs], which include such items as a
           photography hobby of [d]efendant's in which
           she   spent  in   excess   of  $100,000   per
           year. . . .   In other words, [d]efendant's
           argument that [p]laintiff was dissipating
           assets of the marriage is completely undercut
           by the fact that she herself admits that all
           of [plaintiff's] income was going to the
           marital expenses.

                                         14                                A-4063-14T3
     The    trial    judge   next      addressed     the   issue     of   equitable

distribution of ZC and defendant's claim she had been deprived of

discovery relating to the business.                  Regarding discovery, the

trial judge noted Sziklay had been granted access to all of the

records possessed by Politziner.               The judge noted when Sziklay

sought    more    information    and    motion      practice   ensued     over   the

discovery "the [c]ourt painstakingly went line by line through the

additional requests, and ruled on each. . . .               Sziklay, therefore,

had more material to rely on than even the court-appointed expert


     Regarding the valuation of ZC, the trial judge made specific

findings regarding each expert.             The judge found Sziklay's report

to   be    unreliable    because       he    purposely     reduced    the    actual

compensation figures notwithstanding Sziklay's assumption ZC would

be run "with the same level of management effectiveness."                        The

trial     judge   also   found   Sziklay      had    ignored   the    forbearance

agreements signed with MMC.         The judge concluded these agreements

demonstrated MMC was willing to be paid less than its original

agreement with ZC, thereby reflecting a more accurate picture of

the actual corporate health and ZC's value.

     The judge acknowledged "valuation experts will often make

relatively minor adjustments to a bottom line, as both experts did

here . . . [h]owever, it is a completely different thing to make

                                        15                                  A-4063-14T3
wholesale changes in a company's financial operation as a prelude

to a valuation calculation."             Thus, the judge concluded "[g]iven

that . . . Sziklay acknowledged the effectiveness of the company,

and then completely ignored its actual finances and substituted

his individual judgment, the [c]ourt finds that his opinion as to

ultimate value should be given no weight."

      The trial judge also scrutinized Politziner's valuation.

Although    the    judge   noted    he    accorded   greater      weight     to   the

testimony     of    Politziner,      he       disagreed    with      Politziner's

consideration of the class B shares in determining plaintiff's

percentage of ownership of ZC.                The judge found "these shares

would only be realizable in a liquidation event."                 The judge also

noted "the effective cross-examination . . . called into question

[Politziner's] reliance on the [twenty] year government [treasury

bill] also as a function of the equity risk premium could have

resulted in a slightly higher value once the capitalization rate

was applied."

      After   considering     the    expert      testimony     and   plaintiff's

testimony regarding ZC, the trial judge concluded ZC had a value

of   $9,000,000,     and   plaintiff's        one-third   interest     was     worth

$3,000,000.       The judge noted plaintiff acquired his interest in

ZC in 2008 "just a few short years before the filing of the

[c]omplaint."       Beforehand, plaintiff had been an employee "and

                                         16                                  A-4063-14T3
perhaps it could be argued that by 2008, the marital enterprise

was largely ending."   The judge also attributed acquisition of the

business to defendant who "managed their family life so that

[plaintiff] could focus on his career."            However, the      judge

concluded "it is the business [owners'] hard work, their track

record of success, and indeed their 'sweat equity' that allows

them to build a successful career."            Thus, the judge awarded

defendant $750,000 representing a twenty-five percent share of

one-third the value of ZC.

     Regarding   defendant's   request    to   remain   in   the   marital

residence, the judge concluded "[t]here is no basis in law for the

[c]ourt to grant [it]."   This was because defendant conceded she

could not qualify for a mortgage to purchase plaintiff's share of

the residence.   The judge noted the residence had been valued at

$1,635,000, and was encumbered by debt of $1,321,000.

     The trial judge rejected each party's claim for credits from

the sale of the Cape Cod residence.      The judge noted plaintiff had

not met his burden to prove he was entitled to a $15,000 credit

for pay down of the mortgage on the residence because he had only

estimated the sum he believed was due.         The judge also rejected

defendant's argument for a credit because the residence had been

ordered to be listed at a lower price than she had desired.             The

judge found defendant's argument was in essence a motion for

                                 17                                A-4063-14T3
reconsideration of the court's pendente lite determination "made

two years out of time."

      Regarding the vehicles, the trial judge noted "[n]either

party offered any proofs as to the vehicles listed on their CIS.

The [c]ourt is not in a position to equitably divide same."         Thus,

the judge ordered each party to retain the vehicle in his/her

possession, the children retain their vehicles, and all boats to

be sold and the proceeds equally divided.

      The trial judge ordered the furniture from both residences

divided equally.     He denied defendant's claim as to the items she

argued were exempt from equitable distribution and held: "The

[c]ourt has no tangible proof, other than [d]efendant's testimony,

that some furniture was either gifted or bought with inherited


      The trial judge awarded defendant permanent alimony utilizing

the   version   of   
N.J.S.A.   2A:34-23(b)   that   existed   before   its

amendment in September 2014.       The judge reasoned "the matter was

tried under the former iteration of the statute.          That being the

case, the [c]ourt believes it should be decided under the former

statute.    Moreover, in making this decision the [c]ourt believes

that, given the facts of this case, the result would be strikingly


                                    18                            A-4063-14T3
     The judge determined permanent alimony was supported by the

majority of the statutory factors.      He concluded the marriage was

of an "extremely long duration" and "the parties lived a relatively

opulent, and certainly an upper income lifestyle.     Their lifestyle

consumed the entirety of [plaintiff's] income."      He found:

            the goal of "maintaining the lifestyle" is
            more of a goal than a reality. In the case
            of [defendant,] her most recent CIS shows that
            her lifestyle has decreased from $92,352 to
            $27,042 per month. Without even beginning to
            analyze   these   figures    for   credibility
            purposes, it is clear that she has had to
            "sacrifice" her prior lifestyle during the
            course of this litigation, and will have to
            do so going forward.

     The judge found plaintiff's ability to maintain the lifestyle

going forward was facilitated by "an extremely generous expense

account."     Thus, the judge found plaintiff would "have more

flexibility" in maintaining the lifestyle than defendant who would

be dependent on alimony alone.        Conversely, the judge found the

equitable distribution award supported the alimony amount awarded

because defendant would receive at least $750,000 from her share

of ZC to invest "while [plaintiff] will likely someday have the

ability to be bought out upon retirement."

     The judge found defendant could earn no money because she had

been "out of the workforce for decades."        The judge found that

plaintiff and his partners had reduced their draw from $850,000

                                 19                              A-4063-14T3
to $450,000 per year each.            He determined plaintiff's income

fluctuated dramatically because the "bonus can vary relatively

wildly."      However, the judge determined there was never a year

where plaintiff's income fell below $1,000,000.

      The judge ordered the alimony payable at a rate of $22,000

per month from plaintiff's draw and $186,000 per year payable from

the bonus for a total yearly obligation of $450,000.                 The judge

made alimony taxable to defendant and tax deductible to plaintiff.

The   judge     ordered   plaintiff     to   maintain    life     insurance     of

$4,000,000 to secure his alimony obligation.

      The trial judge denied plaintiff's request for a credit for

overpayment of pendente lite support noting the final alimony

award did not support such a credit.           The judge also stated:

              Moreover, the interim support has not been tax
              affected as the alimony will be. The [c]ourt
              has adjusted interim support a number of
              times.   It has visited upon [plaintiff,] as
              the sole bread winner, any number of other
              costs during the course of the litigation.
              Thus, while the alimony award is greater than
              the [pendente lite] award, the [c]ourt does
              not believe either party would be entitled to
              a retroactive credit.

      The trial judge determined the parties' eldest and youngest

children were unemancipated because they remained in college.                 The

parties'      middle   child   having      graduated    college    was    deemed

                                      20                                 A-4063-14T3
emancipated.      Therefore,     the     judge   addressed   the   college

contribution for the remaining children.

     The judge found both parents were "very supportive of the

children and clearly intend they finish their education."               The

judge noted the children's educations were funded pendente lite

from plaintiff's income.       The judge ordered that plaintiff bear

seventy-five percent and defendant twenty-five percent of the

unemancipated   children's     college    housing,   tuition,   food,   and

books.    The judge declined to order child support.

     The trial judge next addressed the issue of counsel, expert,

and mediation fees, and each party's claim for a contribution to

fees.    The judge noted the combined total spent by the parties on

such expenses was $1,402,580.

     The judge noted plaintiff "can clearly afford his counsel's

fees.    [Defendant] is less favorably disposed but has received a

significant award both in terms of equitable distribution and

alimony."    The judge also noted plaintiff had been ordered to pay

$130,000 towards defendant's fees without prejudice.

     Addressing the parties' good faith, the trial judge found

defendant achieved a result better than plaintiff had offered her

in settlement discussions.      However, the judge found "on at least

two occasions, [d]efendant's conduct of blatantly violating the

confidentiality agreement regarding [ZC] required [p]laintiff's

                                   21                              A-4063-14T3
counsel to come into [c]ourt seeking emergent relief. . . .

Defendant at times has acted out of control while both parties

have failed to heed orders of this [c]ourt."     The judge also found

plaintiff had violated a court order "not to receive any monies

from ZC, and then signing loan advances to himself."

     Thus, the judge awarded plaintiff $25,000 for defendant's

violations of the confidentiality agreement, and ordered plaintiff

to bear one-third of defendant's counsel fees.      The judge ordered

the parties to split the mediator's fees equally, which totaled


     Regarding   expert   fees,   the   judge   noted   defendant   had

abandoned Politziner as a joint expert before he could complete

his work or render an opinion in favor of retaining Sziklay.        The

judge rejected defendant's challenge to Politziner's "methods, his

billing practices, the thoroughness of his investigation, and

. . . his conclusions."    The judge found that both parties had

stipulated to Politziner's expertise and the judge's review of

Politziner's billing records did not reveal any inappropriate

billing, and that Politziner's bill was less than Sziklay's.        The

judge noted he found Politziner's conclusions regarding the value

of ZC sound and his testimony "extremely helpful."          Thus, the

judge held plaintiff responsible for two-thirds of Politziner's

bill and defendant responsible for the remaining one-third.

                                  22                           A-4063-14T3
       The trial judge did not order plaintiff to share in Sziklay's

fees.    The judge noted although Sziklay was "extremely qualified

. . . his position in this matter has been almost completely

rejected by this [c]ourt."

       Post-judgment, defendant sought reconsideration of the final

judgment of divorce, which the judge denied in an order dated

April 17, 2015.    This appeal followed.

       On appeal, defendant argues the trial judge erred in: adopting

Politziner's valuation of ZC and in the percentage of ZC's value

awarded to defendant; valuing the Cape Cod residence; ordering the

sale of the marital residence; ordering taxable alimony be paid

to defendant, and the amount of alimony and life insurance to

insure it; failing to give defendant a Mallamo1 adjustment in light

of the alimony awarded at trial; rejecting defendant's dissipation

claim; failing to make an equitable distribution of personal

property; failing to award defendant a portion of the 2011 income

tax overpayment; failing to make an equitable distribution of the

parties'    automobiles;   requiring   the   parties   to   share   in   the

children's college expenses; granting plaintiff's application to

hold defendant in violation of litigant's rights for violation of

the confidentiality agreement; and awarding of counsel fees.

    Mallamo v. Mallamo, 
280 N.J. Super. 8 (App. Div. 1995).

                                  23                                A-4063-14T3

     We begin with our standard of review.    The Supreme Court has


            [F]indings by a trial court are binding on
            appeal    when    supported    by    adequate,
            substantial, credible evidence.     Cesare v.
154 N.J. 394, 411-12 (1998). We defer
            to the credibility determinations made by the
            trial court because the trial judge "hears the
            case, sees and observes the witnesses, and
            hears them testify," affording it "a better
            perspective   than   a  reviewing   court   in
            evaluating the veracity of a witness."     Id.
            at 412 (citing Pascale v. Pascale, 
113 N.J.
            20, 33 (1988)).

            If the trial court's conclusions are supported
            by the evidence, we are inclined to accept
            them. Ibid. We do "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.'"     Ibid. (quoting Rova Farms
            Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
            N.J. 474, 484 (1974)). "Only when the trial
            court's conclusions are so 'clearly mistaken'
            or 'wide of the mark'" should we interfere to
            "ensure that there is not a denial of
            justice." N.J. Div. of Youth & Family Servs.
            v. E.P., 
196 N.J. 88, 104 (2008) (quoting N.J.
            Div. of Youth & Family Servs. v. G.L., 191
            N.J. 596, 605 (2007)).

            [Gnall v. Gnall, 
222 N.J. 414, 428 (2015).]

     "Appellate courts accord particular deference to the Family

Part because of its 'special jurisdiction and expertise' in family

matters."    Harte v. Hand, 
433 N.J. Super. 457, 461 (App. Div.

                                 24                          A-4063-14T3
2013) (quoting Cesare, 
154 N.J. at 412).       However, "[t]his court

does not accord the same deference to a trial judge's legal

determinations.    Rather, all legal issues are reviewed de novo."

Ricci v. Ricci, 
448 N.J. Super. 546, 565 (App. Div. 2017) (citing

Reese v. Weis, 
430 N.J. Super. 552, 568 (App. Div. 2013)).


     Defendant argues the trial judge abused his discretion in

limiting discovery relating to the valuation of ZC.          She contends

this error made both experts' opinions unreliable net opinions.

She also argues the judge erred regarding the value of ZC, and in

awarding an equitable distribution of only twenty-five percent of

plaintiff's ownership interest.

     The Supreme Court has held "deference is generally accorded

to the trial court" on discovery matters.       Wilson v. Amerada Hess

168 N.J. 236, 253 (2001).       Therefore, we apply an abuse of

discretion standard in our review of discovery determinations by

a trial court.     Connolly v. Burger King Corp., 
306 N.J. Super.
 344, 349 (App. Div. 1997).

     The trial judge explained that defendant's expert Sziklay

received more discovery regarding ZC than Politziner. Both experts

were able to render an opinion as to ZC's value.            Moreover, the

trial   judge   addressed   defendant's   pendente   lite    motions   and

                                  25                              A-4063-14T3
exercised his discretion by engaging in a detailed review of

defendant's discovery demands.

       Defendant does not identify any particular discovery requests

that were improperly denied.     Rather, she argues generally that

"[t]he record reveals the extent of the discovery limitations

imposed by the court," and claims the "discovery-based [o]rders

were   in   error."   Furthermore,    she   does   not   state   with   any

particularity why the unspecified discovery was necessary for her

to establish the true value of ZC, or why the permitted discovery

was insufficient for that purpose.     Having reviewed the record and

the judge's determination we are not convinced the alleged lack

of discovery had an adverse impact upon the equitable distribution


       We also find no support for defendant's assertion the lack

of discovery rendered the experts' reports net opinions. Defendant

made no such claim at trial.         Moreover, a net opinion is one

rendered with only "an expert's bare conclusions, unsupported by

factual evidence[.]"     Buckelew v. Grossbard, 
87 N.J. 512, 524

(1981).     "In essence, the net opinion rule requires an expert

witness to give the why and wherefore of his expert opinion, not

just a mere conclusion."     Vitrano v. Schiffman, 
305 N.J. Super.
 572, 577 (App. Div. 1997) (quoting Jimenez v. GNOC, Corp., 
286 N.J. Super. 533, 540 (App. Div. 1996)).        "Where . . . an expert

                                 26                                A-4063-14T3
offers an opinion without providing specific underlying reasons

. . . he ceases to assist the trier of fact and becomes nothing

more tha[n] an additional juror."               Ibid. (quoting Jimenez, 
286 N.J. Super. at 540).          "An expert's conclusion 'is excluded if it

is   "based   merely     on    unfounded      speculation   and   unquantified

possibilities."'"        Townsend v. Pierre, 
221 N.J. 36, 55 (2015)

(quoting Grzanka v. Pfeifer, 
301 N.J. Super. 563, 580 (App. Div.


      Given the trial judge's detailed analysis of each expert's

report, and explanation regarding how each arrived at a conclusion

of valuation, defendant's claim the reports were net opinions

lacks   merit.        Each    expert   provided   a   detailed    and   thorough

explanation      of   the    valuation    methodology    and     reasoning    for

valuation.    Their reports were not unsupported speculation.

      We also disagree the valuation determination was erroneous.

Our review of equitable distribution determinations is narrow.

Valentino v. Valentino, 
309 N.J. Super. 334, 339 (App. Div. 1998);

Wadlow v. Wadlow, 
200 N.J. Super. 372, 377 (App. Div. 1985).                    We

decide only whether the trial court "mistakenly exercised its

broad authority to divide the parties' property and whether the

result was 'reached by the trial judge on the evidence, or whether

it is clearly unfair or unjustly distorted by a misconception of

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

                                         27                              A-4063-14T3
309 N.J. Super. at 339 (quoting Wadlow, 
200 N.J. Super.

at   382).        "A    sharp   departure   from   reasonableness    must    be

demonstrated before our intercession can be expected."                Wadlow,

200 N.J. Super. at 382 (quoting Perkins v. Perkins, 
159 N.J. Super.
 243, 248 (App. Div. 1978)).

      To   make    an    equitable   distribution   the   trial   judge   must

identify the assets subject to equitable distribution, value the

assets as of the date of complaint, and determine how the assets

should be distributed between the parties.             Rothman v. Rothman,

65 N.J. 219, 232 (1974).           The goal of equitable distribution is

to achieve a fair division of marital property.                   Steneken v.

183 N.J. 290, 299 (2005).           Pursuant to 
N.J.S.A. 2A:34-

23.1, the Legislature has provided sixteen factors the trial judge

must utilize in making an equitable distribution.

      Equitable distribution of a spouse's interest in a closely

held company requires identifying the fair value of the business.

As stated by the Supreme Court in Steneken, 
183 N.J. at 296-97:

             "There are . . . few assets whose valuation
             impose    as    difficult,    intricate    and
             sophisticated a task as interests in close
             corporations." Torres v. Schripps, Inc., 342
             N.J. Super. 419, 435 (App. Div. 2001) (quoting
             Lavene v. Lavene, 
148 N.J. Super. 267, 275
             (App. Div. 1977)). . . . Although there is
             no general formula that will apply to the
             "many different valuation situations," the
             ultimate "goal is to arrive at a fair market

                                       28                             A-4063-14T3
           value for a stock      for   which   there    is   no
           market." Ibid.

     The capitalized earnings method, used by both experts in this

case,   involves    "[c]apitalization   of   indicated    earnings   at    a

reasonable return on investment based on relative risk and current

interest rates."      Lavene v. Lavene, 
162 N.J. Super. 187, 197 (Ch.

Div. 1978).

           This method requires analysis of the earning
           power of the corporation as it is related to
           the rates of return expected in the current
           money market for various types of investments
           with consideration given to expected rates of
           growth, risk and the potential time lag until
           a reasonable level of profit can be obtained.
           Based on this analysis the earning power is
           converted into a corresponding value.

           This conversion is usually accomplished "by
           relating the rate of return expected to a
           corresponding multiple of net after tax income
           such as is represented by the price-earnings
           ratio often discussed in analysis of stock
           exchange traded equities."

                   The appropriate rate to use in
                   capitalization . . . is a matter of
                   judgment based primarily upon the
                   degree of risk associated with the
                   probable future income stream and
                   determination of what should be a
                   fair return on the investment.

                   The   capitalizing   procedure   is
                   appropriate where it appears that
                   the operation can continue on for a
                   long   period   as   a   profitable

                                   29                              A-4063-14T3
           [Id. at 197-98 (emphasis added) (alteration
           in original) (citations omitted).]

     The valuation technique accepted by the trial court, is

"measured against a reasonableness standard."   Steneken, 
183 N.J.

at 297.   Although the approach must be grounded in principles that

are generally acceptable in the financial community, a business

valuation is a very fact-sensitive inquiry, and it is more an art

than a precise science.      Id. at 297-98; accord Balsamides v.

Protameen Chems., Inc., 
160 N.J. 352, 368 (1999); Brown v. Brown,

348 N.J. Super. 466, 477 (App. Div. 2002).

     The purpose of normalization adjustments is to reach a fair

value of the company based upon application of industry standards.

We disagree with defendant's argument the judge erred in rejecting

Sziklay's opinion based upon the normalization adjustment he took

for the company's excessive compensation expenses.       Courts are

free to accept or reject expert testimony, and do not have to

adopt the opinion of either expert.     Brown, 
348 N.J. Super. at
 478; Cty. of Middlesex v. Clearwater Vill., Inc., 
163 N.J. Super.
 166, 174 (App. Div. 1978).     Moreover, such adjustments are not

mandatory.    In Steneken, the Court expressly stated: "for the

purpose of valuing a closely-held corporation in determining the

proper    equitable   distribution   thereof,   proper    valuation

techniques, which may include the normalization of excess salary

                                30                          A-4063-14T3
expenses, are to be applied."             
183 N.J. at 293 (emphasis added).

     As   we    noted,    the     trial    judge    found    that   by     making   the

normalization adjustment for compensation, Sziklay had essentially

rewritten      the     corporate         books     and    valued     a     "fictional

corporation."        Although it is a generally accepted accounting

valuation      practice      to   take    the    normalization      adjustment      for

excessive compensation, the trial judge provided a reasonable

explanation for rejecting Sziklay's adjustment methodology.                         The

judge found Sziklay's reduction of compensation by forty percent

was inconsistent with his "'assumption' that ZC would be managed

in the future 'with the same level of effectiveness' as it was on

the date of valuation."

     Both experts testified regarding normalization adjustments

they took for items beyond compensation, namely, ZC's excessive

marketing expenses, as well as the upward adjustments made to the

partners' compensation amounts.             Both experts agreed the industry

standard for compensation as a percentage of total revenue was

approximately        fifty    percent,      and    this     was    ZC's    historical

percentage, as well as its future goal.                   However, in 2011, the

compensation ratio for ZC was over seventy percent.                       Sziklay took

a normalization adjustment that assumed a percentage ratio of

sixty percent.

     Politziner made no adjustment because he accepted plaintiff's

                                          31                                   A-4063-14T3
representation the excess compensation was necessary to retain

staff and generate future business.              This was not inconsistent

with Politziner's testimony that ZC had experienced boom years

because it was well managed and that based on its prior performance

it hoped to achieve similar results compared to its historical


     Defendant also argues the trial judge improperly relied on

the restructured note as dispositive of the company's value, thus

using a "fair market value" standard for valuing the company, as

opposed to the "fair value" standard.            We disagree.

     "Ordinarily the value that people put on an asset is the most

productive place to start such an inquiry[.]"           Bowen v. Bowen, 
96 N.J. 36, 45 (1984); see also Slutsky v. Slutsky, 
451 N.J. Super
 332, 362 (App. Div. 2017) (finding a law firm's shareholder

agreement    relevant   to    the   issue   of    valuation     of   partner's


     Here, both experts clearly utilized a fair value methodology

approach. However, the judge found Sziklay ignored the forbearance

agreement altogether.        The judge disfavored Sziklay's valuation


            Given that the theory underlying setting a
            valuation is always what a willing buyer would
            pay a willing seller, neither being under any
            compunction to act, the decision of [MMC] to
            renegotiate and accept a largely reduced

                                     32                                A-4063-14T3
            purchase price from the principals of ZC is,
            to this [c]ourt, much more indicative of true

     Therefore, Politziner's consideration of the note did not

change his analysis to a fair market value approach, but instead

better described ZC's fair value.         The trial judge's acceptance

of Politziner's valuation was not erroneous.

     Defendant argues the judge erred in failing to consider other

indicators    of   ZC's   value,   including:   pre-complaint   financial

reports commissioned by plaintiff, which indicated a value of

$25,000,000; the life and disability insurance policies purchased

by the company with respect to plaintiff; the $600,000 in revenue

sent to the company's Cayman Island branch; and the sale of Zolfo

Cooper Europe (ZCE), in February 2015, for $100,000,000.                  We


     The pre-complaint reports and the value of the insurance ZC

held on plaintiff's life were less reliable indicators of value

than the valuation undertaken by both experts, who analyzed ZC's

prior performance and compared it with its industry.            Moreover,

the document relied upon by defendant to prove the company had a

Cayman Islands operation was not prepared by ZC, and the trial

judge   accepted    plaintiff's    testimony    that   the   document   was

inaccurate.   Also, defendant raised the value of ZCE for the first

time in her motion for reconsideration, and there is no evidence

                                    33                             A-4063-14T3
in the record plaintiff had any ownership interest in ZCE.      The

aforementioned items were not a reliable means of valuation.

     Defendant argues the trial judge erred in awarding her only

twenty-five percent of the value of plaintiff's ownership interest

in ZC.   She argues she should have received a fifty percent


     As we recently stated:

          The equitable distribution statute "reflects
          a public policy that is 'at least in part an
          acknowledgment that marriage is a shared
          enterprise, a joint undertaking, that in many
          ways . . . is akin to a partnership.'" Thieme
          v. Aucoin-Thieme, 
227 N.J. 269, 284 (2016)
          (quoting Smith v. Smith, 
72 N.J. 350, 361
          (1977)).   But, equitable is not synonymous
          with equal. See Rothman, 
65 N.J. at 232 n.6.
          Our courts must remain true to the legislative
          mandate expressed in 
N.J.S.A. 2A:34-23.1,
          which    assures    an    ordered    equitable
          distribution be "designed to advance the
          policy of promoting equity and fair dealing
          between divorcing spouses." Barr v. Barr, 418
          N.J. Super. 18, 45 (App. Div. 2011).      This
          requires evaluation of unique facts attributed
          to each asset.

451 N.J. Super. at 358.]

     The trial judge was not required to award defendant fifty

percent of plaintiff's ownership interest in ZC.      The judge's

findings reflect an adherence to an analysis of the facts by

applying the statutory factors to each asset rather than a uniform

application and even distribution of each asset.   The trial judge

                               34                          A-4063-14T3

          [Plaintiff's] interest in ZC only began in
          2008, just a few short years before the filing
          of this Complaint. Prior to that, [plaintiff]
          was an employee, and perhaps it could be
          argued that by 2008, the marital enterprise
          was largely ending. . . . He was entrusted,
          along with his partners, by [MMC] [sic] to
          assume the business effectively for no money
          down based on the long track record he has
          built as an effective professional in the
          industry.   He was able to build that track
          record because he had a partner in life, one
          [who] managed their family life so that he
          could focus on his career. That relationship
          continued throughout the entirety of his
          career.     Having said that, the [c]ourt
          recognizes that it is the business owner's
          hard work, their track record of success, and
          indeed their 'sweat equity' that allows them
          to build a successful career. It is for that
          reason that the equitable distribution of a
          business is different than any other asset of
          a marriage.

     The trial judge's equitable distribution determination of ZC

is supported by sufficient credible evidence in the record.      The

equitable distribution award was not an abuse of discretion.


     Defendant argues the trial judge erred in denying her a credit

for fifty percent of the difference between the $3,200,000 listing

price she requested for the Cape Cod home, and its ultimate sale

price of $2,895,000.   We find no error in the judge's findings.

     Pendente lite, the trial judge ordered the sale of the Cape

Cod residence and set the listing price at $2,895,000.           The

                               35                           A-4063-14T3
residence sold at the listing price before trial, and the funds

were deposited into escrow, along with funds attributable to

plaintiff's post-complaint earnings.

     At trial, defendant argued the trial judge's determination

of the listing price for the residence was artificially low.           The

trial judge rejected defendant's claim, referring to her argument

as "essentially a Motion for Reconsideration made two years out

of time."

     We disagree.    Defendant was not time barred to challenge the

trial judge's pendente lite order setting the listing price for

the Cape Cod residence because the order was interlocutory in

nature and therefore reviewable.      See Johnson v. Cyklop Strapping

220 N.J. Super. 250, 261 (App. Div. 1987) (stating "[t]he

inherent power of the court to modify its own interlocutory orders

prior to the entry of final judgment has long since been recognized

in New Jersey.").

     Nevertheless,    the   record    lacks    evidence   supporting    a

$3,200,000 value for the Cape Cod home.       Defendant's testimony was

that the parties should have chosen a listing price of $2,995,000.

She adduced no expert testimony regarding the value of the home

or other objective evidence to establish the home would have sold

for an amount greater than the listing price.       The trial judge did

not err in refusing to grant defendant a credit based upon a

                                 36                             A-4063-14T3
hypothetical sales price for the Cape Cod residence.


      Defendant argues the trial judge erred in ordering the sale

of the marital home.         Additionally, she asserts "[t]he court also

erred regarding the escrow account."              We find no merit to these


      The trial judge ordered the sale and equal distribution of

the marital residence, which had an appraised value of $1,635,000,

and   approximately     $1,321,000     in    mortgage   debt.     Pursuant     to

N.J.S.A. 2A:34-23.1(l), the judge found defendant had no need to

retain the residence because the children were grown and residing

outside of the residence.            The judge acknowledged defendant's

desire    to   remain   in    the   residence,    but   noted   her   testimony

conceding she could not obtain a mortgage to purchase plaintiff's

interest.      Therefore, the judge's decision to order the residence

sold was not an abuse of discretion.

      The record reveals that the escrow account was comprised of

plaintiff's post-complaint earnings and the proceeds from the sale

of the Cape Cod home.        The trial judge awarded defendant one-half

of the proceeds from the sale of the Cape Cod residence. Defendant

has not articulated a reason why the judge erred in permitting

plaintiff to retain his post-complaint earnings.                Indeed, absent

other    circumstances,      the    filing   of   a   complaint   for   divorce

                                       37                               A-4063-14T3
terminates the marital enterprise.        See Painter v. Painter, 
65 N.J. 196, 218 (1974); see also Brandenburg v. Brandenburg, 
83 N.J.
 198, 209-10 (1980).      For these reasons, we decline to disturb the

trial judge's decision to permit plaintiff to retain his post-

complaint earnings from the escrow.


     Defendant argues the trial judge awarded an insufficient sum

of alimony, and as a result the sum of life insurance was also

erroneous.    Specifically, she contends the judge made inadequate

findings     regarding   the   marital   lifestyle   and   inaccurately

calculated plaintiff's annual income to be $1,313,000, without

considering benefits, perquisites, and plaintiff's earnings for

2012 and 2013.     Defendant also argues the trial judge erred by

awarding taxable alimony because ZC paid the taxes.           Defendant

argues the alimony failed to account for the cost of defendant's

medical insurance expenses and had no savings component. Defendant

asserts the judge failed to specify how the equitable distribution

award factored into the alimony determination.

     In a review of an alimony award, we defer to the trial judge's

findings.    Overbay v. Overbay, 
376 N.J. Super. 99, 106 (App. Div.

2005).   We will not overturn an alimony award unless we find

            the trial court clearly abused its discretion
            or failed to consider all of the controlling
            legal principles, or we must otherwise be

                                   38                           A-4063-14T3
            satisfied that the findings were mistaken or
            that the determination could not reasonably
            have been reached on sufficient credible
            evidence   present   in  the   record   after
            considering all of the proofs as a whole.

            [Gonzalez-Posse v. Ricciardulli,     410    N.J.
            Super. 340, 354 (App. Div. 2009).]

"An alimony award that lacks consideration of the factors set

forth in 
N.J.S.A. 2A:34-23(b) is inadequate[.]"        Crews v. Crews,

164 N.J. 11, 26 (2000).

     Courts may award alimony "as the circumstances of the parties

and the nature of the case shall render fit, reasonable and

N.J.S.A. 2A:34-23.   The standard of living during the

marriage serves as the "touchstone" for alimony.       Crews, 
164 N.J.

at 16.     Whenever possible, the alimony award should be set at an

amount that will "enable each party to live a lifestyle 'reasonably

comparable' to the marital standard of living."    Id. at 26 (citing

N.J.S.A. 2A:34-23(b)(4)).

     Although the trial judge addressed each statutory factor, he

only described the characteristics of the marital lifestyle.          He

failed to articulate, numerically, his findings regarding the

marital lifestyle.    Indeed, the judge reviewed plaintiff's income

between 2005 and 2011, excepting 2009, which was aberrational, and

concluded plaintiff earned an average of $1,313,000 per year.       The

judge further noted plaintiff's income was paid primarily in the

                                  39                           A-4063-14T3
form of a bonus, which could vary from year-to-year.                     Thus, while

plaintiff's income had never dropped below $1,000,000 annually,

the judge found it also "could be more than twice that amount."

The judge also noted that plaintiff benefited from "an extremely

generous       expense     account"   and    "the   firm's    largesse     extended

towards its clients on such things as holiday parties, ski trips

and the like."

     The judge concluded "[p]laintiff's income represented all of

the household income," and the parties spent all of plaintiff's

income to support their "incredibly profligate lifestyle."                         The

judge further found that the parties "were not savers."                      Rather,

they "liv[ed] at or even above their means."

     Although        the   judge's    descriptive     findings     regarding       the

lifestyle were adequate, we are unable to correlate his findings

regarding      the   parties'    expenditures       with     the   alimony    award.

Indeed, the judge ordered plaintiff to pay defendant permanent

alimony of $450,000 per year based on an income of $1,313,000, but

without    a    numerical     finding   of    lifestyle,      we   are    unable    to

determine how the alimony figure was derived.2                For these reasons,

  Conversely, we have no difficulty with the trial judge's
calculation of plaintiff's income. The averaging of the income
for five years preceding the complaint without consideration of
the post-complaint earnings was a sound methodology. See Platt
v. Platt, 
384 N.J. Super. 418, 426-27 (App. Div. 2006) (affirming

                                        40                                   A-4063-14T3
we reverse the alimony award and remand for the trial judge to

make a numerical finding of the marital lifestyle and then explain

whether and how the alimony award meets it.

     The judge's consideration of the marital lifestyle should

also consider defendant's claims regarding the costs of her medical

insurance.   This expense was paid by ZC during the marriage, and

post-judgment will continue to inure to plaintiff's benefit alone,

yet become a significant post-judgment expense for defendant.

     However,    we   disagree   that   the   trial   judge   should    have

increased the calculation of plaintiff's income by the value of

the medical insurance provided by ZC, and the expense account ZC

afforded plaintiff for marketing purposes, as these benefits only

defrayed   the   marital   lifestyle    and   the   trial   judge   already

determined the marital lifestyle was defined by the expenditure

of plaintiff's earnings.

     We also disagree the trial judge erred by not including a

savings component for alimony.      We recently stated:

           [T]he court can take into account the marital
           standard of living and allow the supported
           spouse to save for the future. See [Glass v.
           Glass] 366 N.J. Super. [357,] 379 [(App. Div.
           2004)]; see also Capodanno v. Capodanno, 58

the use of a five year average of an obligor's income plus two
years following the complaint, but only where the obligor purposely
reduced his post-complaint income despite his business performing
well).   Here, there was no need to consider plaintiff's post-
complaint income because he did not intentionally reduce it.

                                   41                               A-4063-14T
3 N.J. 113, 120 (1971).    This is particularly
true when the supporting spouse can afford any
amount paid to the supported spouse. [Glass,

366 N.J. Super. at 379.]

A spouse's need for savings has long been
recognized as a component of alimony, see
21 N.J. at 354], that allows for
the accumulation of "reasonable savings to
protect [the supported spouse] against the day
when alimony payments may cease because of
[the death of the supporting spouse] or change
in circumstances." Davis [v. Davis], 184 N.J.
Super. [430,] 437 [(App. Div. 1982)] (quoting
Khalaf v. Khalaf, 
58 N.J. 63, 70 (1971)).
Savings have been used for such security in
lieu of directing the supporting spouse to
keep a life insurance policy or establish a
trust. . . .    In short, savings has been a
relevant   and   appropriate   factor  to   be
considered   in   the   establishment   of   a
reasonable and equitable alimony award because
the amount of support awarded is subject to
review and modification upon a showing of a
change of circumstances, which could result
in the supported spouse being incapable of
supporting himself or herself.     See [Davis,

184 N.J. Super. at 437.]

However, the protection of income being
derived through alimony is not the only reason
why a supported spouse requires savings,
especially where regular savings have been
part of the established marital lifestyle.
"[A]n appropriate rate of savings to meet
needs in the event of a disaster, to make
future major acquisitions such as automobiles
and appliances, and for retirement can, and
in the appropriate case should, be considered
as a living expense when considering an award
of . . . [alimony]."     [In re Marriage of]
Weibel, 965 P.2d [126,] 129-30 [(Colo. App.
1998); see also [Glass, 
366 N.J. Super. at 378.]

                     42                          A-4063-14T3
          The most "appropriate case" in which to
          include a savings component is where the
          parties' lifestyle included regular savings.

          [Lombardi v. Lombardi, 
447 N.J. Super. 26, 38-
          39 (App. Div. 2016) (alterations in original)
          (emphasis added) (citations omitted).]

     The parties did not save during the marriage.         Moreover,

although plaintiff earns a substantial income, he cannot afford

to pay an unlimited amount of alimony to defendant.        Also, the

trial judge ordered life insurance to secure alimony for defendant

in the event of plaintiff's demise.    There is no indication the

alimony awarded would not enable plaintiff to acquire assets in

the future.   Moreover, the final judgment of divorce does not

foreclose plaintiff from seeking an increase in alimony in the

event of a substantial and permanent change in circumstances

requiring greater support.     For these reasons, we decline to

require consideration of a savings component for alimony on remand.

     We conclude the trial judge erred by awarding taxable alimony

to defendant. There is no dispute ZC pays the taxes on plaintiff's

income and that he is not obligated to do so.   Therefore, awarding

taxable alimony to defendant where there was no commensurate

benefit of deductibility to plaintiff seems to only financially

burden defendant.   Therefore, we reverse the alimony award and

direct the trial judge to award an appropriate sum of non-taxable

alimony to defendant.

                               43                            A-4063-14T3
     We note further the alimony award must be reversed because

the trial judge utilized the wrong version of 
N.J.S.A. 2A:34-

23(b).    Although he acknowledged the statute was amended in

September 2014, before the entry of final judgment, the judge

reasoned the case had been tried and concluded prior to the

amendment of the alimony statute.

     This may be so, but the trial judge's failure to utilize the

current statute was an error.       We have previously held that the

current statute does not apply where "the post-judgment order

became final before the statutory amendment's effective date[.]"

Spangenberg v. Kolakowski, 
442 N.J. Super. 529, 539 (App. Div.

2015).   Here, because the trial judge's decision was issued four

months after the September 10, 2014 effective date of the alimony

statute, the current version of the law should have been applied.

     Indeed, the amendments to the statute altered the core factors

trial judges should consider in fashioning an alimony award.

Therefore,   the   determination   here   did   not   comport   with   the

statutory requirement the trial judge "shall consider . . . [all

of the] factors" in 
N.J.S.A. 2A:34-23(b).3       For these reasons, we

reverse and remand the alimony determination.

  We do not address defendant's claims regarding how the trial
judge weighed the equitable distribution award in the alimony
calculation because the trial judge will be considering the current
statutory factors anew upon remand.

                                   44                             A-4063-14T3
    The trial judge ordered plaintiff to maintain $4,000,000 in

life insurance with defendant as the named beneficiary for the

duration of the alimony obligation.           To the extent the alimony

determination     upon   remand   necessitates      a    review   of     the   life

insurance award, the trial judge should also adjust the insurance

amount plaintiff is required to maintain, if appropriate.


    Defendant contends the judge erred in denying her Mallamo

claims and made inadequate findings of fact.                   She argues the

pendente   lite   support    awards    were   insufficient        in   light      of

plaintiff's   post-complaint      earnings    and       the   ultimate    alimony

award.   She also argues that the judge erred in granting plaintiff

a fifty-percent credit for the money defendant withdrew from the

parties' joint money market account.

    In Mallamo, we described how, pendente lite,

           [i]n many instances the motion judge is
           presented reams of conflicting and, at times,
           incomplete information concerning the income,
           assets and lifestyles of the litigants. The
           orders are entered largely based upon a review
           of the submitted papers supplemented by oral
           argument.     Absent agreement between the
           parties, however, a judge will not receive a
           reasonably complete picture of the financial
           status of the parties until a full trial is
           conducted. Only then can the judge evaluate
           the evidence, oral and documentary, and weigh
           the credibility of the parties. Only then can
           the judge determine whether the supporting
           spouse has the economic means represented by

                                      45                                   A-4063-14T3
              the other spouse or in the case of declining
              income has suffered legitimate economic
              reversal or has been afflicted with a
              temporary   case  of   diminished  resources
              occasioned by a divorce.

280 N.J. Super. at 16 (emphasis added).]

     Here, as we noted, support fluctuated from $43,000, $20,000,

$15,000 and $22,000 per month as pendente lite circumstances

changed.       The   trial   judge   declined    to   award   a   retroactive

modification of pendente lite support reasoning the final alimony

award was taxable and that plaintiff had been ordered to pay "any

number of other costs during the course of the litigation."

     However, because the trial judge's decision lacks a numeric

description of the marital lifestyle, we are unable to determine

whether the pendente lite support was adequate and whether the

other expenses paid by plaintiff that the trial judge noted, but

failed   to    quantify,     obviated    more   pendente   lite   support    to

defendant.      Moreover, the issue of pendente lite support must be

revisited in light of our remand on the issue of the taxability

of alimony. Our remand of alimony for the purpose of consideration

of the factors set forth in the current version of the alimony

statute is particularly relevant to this issue, as 
N.J.S.A. 2A:34-

23(b)(13) requires the trial judge to consider the "nature, amount

and length of pendente lite support paid" in awarding alimony.

     We affirm the trial judge's decision to grant plaintiff a

                                        46                            A-4063-14T3
credit for one-half of the funds defendant unilaterally withdrew

from the parties' joint account after the complaint. Specifically,

the judge credited plaintiff $65,500 of the $131,000 unilaterally

withdrawn by defendant post-complaint.           The judge also accepted

plaintiff's valuation of the account, which was greater than

defendant's $116,400.

     Defendant offers no basis for us to second guess the trial

judge's findings. We are satisfied the decision to grant plaintiff

a credit was not an abuse of discretion and was supported by the

credible evidence in the record.


     Defendant   argues   the   trial    judge    erred   by   not   finding

plaintiff had dissipated income and assets from the marriage.               We


N.J.S.A. 2A:34-23.1(i) states the trial court shall consider,

"[t]he contribution of each party to the acquisition, dissipation,

preservation, depreciation or appreciation in the amount or value

of the marital property, or the property acquired during the civil

union as well as the contribution of a party as a homemaker."             See

Vander Weert v. Vander Weert, 
304 N.J. Super. 339, 349 (App. Div.

1997) ("[A]s a general matter, the distributable marital estate

is deemed to include assets diverted by one of the spouses in

contemplation of divorce and for the purpose of diminishing the

                                  47                                 A-4063-14T3
other spouse's distributable share."); see also Monte v. Monte,

212 N.J. Super.     557, 567-68 (App. Div. 1986) (stating debts

incurred by one spouse without knowledge of the other in order to

purposely encumber a marital asset constituted a dissipation of

the asset).

      The concept of dissipation "is a plastic one, suited to fit

the demands of the individual case."      Kothari v. Kothari, 
255 N.J.

Super. 500, 506 (App. Div. 1992).      In determining whether a spouse

has   dissipated   marital   assets,   courts   consider   the   following


           (1) the proximity of the expenditure to the
           parties'   separation,    (2)   whether   the
           expenditure was typical of expenditures made
           by the parties prior to the breakdown of the
           marriage,   (3)   whether   the   expenditure
           benefitted the "joint" marital enterprise or
           was for the benefit of one spouse to the
           exclusion of the other, and (4) the need for,
           and amount of, the expenditure.

           [Id. at 507 (quoting Annotation, Spouse's
           Dissipation Of Marital Assets Prior To The
           Divorce As A Factor In Divorce Court's
           Determination Of Property Division, 
41 A.L.R.
           4th 416, 421 (1985)).]

"The question ultimately to be answered by a weighing of these

considerations is whether the assets were expended by one spouse

with the intent of diminishing the other spouse's share of the

marital estate."    Ibid.

      The record supports the judge's rejection of defendant's

                                  48                               A-4063-14T3
dissipation claim.       In particular, defendant pointed to 2010 as

the time when the marriage began to break down.                 She claimed

plaintiff    had       consulted    with   divorce       strategists       and

simultaneously lulled her into believing he desired to remain


     However, defendant adduced no evidence of dissipation in

2010, or the years following, to corroborate her theory.             Instead,

defendant produced self-created charts purporting to demonstrate

the dissipation prior to 2010, and her own timeline for the

breakdown   of   the   marriage.     Moreover,   there    was   no   showing

plaintiff hid his relationships and expenditures from defendant

or evidence he encumbered or transferred marital assets to avoid

an equitable distribution to defendant.          The record demonstrates

plaintiff's income was known and he made no attempts to divert it

from the marriage.

     The trial judge's finding that the extramarital relationships

alleged by defendant were not in and of themselves proof that a

dissipation is sound. We discern no abuse of discretion or mistake

of law, and affirm this aspect of the judgment.


     Defendant argues the trial judge erred in failing to award

her certain personal property within the marital residence and

instead evenly dividing it.        Specifically, referring to the trial

                                     49                               A-4063-14T3
judge's finding that items defendant claimed were gifted to her

had become marital because she brought them into the marriage,

defendant argues "[p]ersonalty cannot be deemed a marital asset

simply because it exists in the marital home."

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

           Except as provided in this subsection, in all
           actions where a judgment of divorce, . . . is
           entered the court may make such award or
           awards to the parties . . . to effectuate an
           equitable distribution of the property, both
           real and personal, which was legally and
           beneficially acquired by them or either of
           them during the marriage . . . . However, all
           such property, real, personal or otherwise,
           legally or beneficially acquired during the
           marriage . . . by either party by way of gift,
           devise, or intestate succession shall not be
           subject to equitable distribution . . . .

The   burden     of   establishing    that   property   is    immune    from

distribution "will rest upon the spouse who asserts it."          Painter,

65 N.J. at 214.

      Defendant identified items she claimed were gifts from her

family members, and argued they should be immune from distribution.

However,   the   judge   rejected    defendant's   claim,    stating:   "The

[c]ourt has no tangible proof, other than [d]efendant's testimony,

that some furniture was either gifted or bought with inherited

funds. In any event, the exempt status was lost when the furniture

became part of the marital residence."

      We agree with defendant that inherited or otherwise immune

                                     50                            A-4063-14T3
personalty     does   not   become   co-mingled       merely   because   of   its

location within the marital residence.           However, defendant's claim

failed because she did not meet her burden of proof to establish

the exempt status of the furnishings.            We have not been presented

with any other evidence to establish the immune nature of the

personalty.     The trial judge's findings are entitled to deference.

For these reasons, we affirm the judge's determination.


     Defendant contends the judge erred by not addressing her

request for equitable distribution of a 2011 income tax overpayment

of $99,234.    Although the record reflects no findings by the trial

judge on this issue, the reason is self-evident.

     It   is   undisputed     ZC   paid    all   of   the   income   taxes    for

plaintiff.     Thus, any overpayment of tax would be due to the firm

and did not belong to the parties as equitable distribution.

     Therefore, pursuant to Rule 2:10-5, we exercise original

jurisdiction to adjudicate this issue.            As stated by our Supreme


           [r]esort    to   original    jurisdiction   is
           particularly appropriate to avoid unnecessary
           further litigation, as where the record is
           adequate to terminate the dispute and no
           further    fact-finding   or    administrative
           expertise or discretion is involved, and thus
           a remand would be pointless because the issue
           to be decided is one of law and implicates the
           public interest.

                                      51                                 A-4063-14T3
           [Price v. Himeji, LLC, 
214 N.J. 263, 294
           (2013) (alteration in original) (quoting Vas
           v. Roberts, 
418 N.J. Super. 509, 523-24 (App.
           Div. 2011)).]

     For   these   reasons,    defendant's   request   for   equitable

distribution of the 2011 income tax overpayment is denied.


     Defendant contends the trial judge erred in failing to address

her request "for a credit of fifty percent . . . of funds generated

by plaintiff's unilateral sale of vehicles during the [divorce]

proceedings."   We disagree.

     As we noted, plaintiff sold a Jeep and used its proceeds to

purchase a new vehicle for one of the parties' children.       He also

sold an Infiniti and applied the proceeds to the purchase of an

automobile for himself.

     If defendant sought an equitable distribution of the proceeds

from sale of the automobiles, which had been invested in newer

vehicles, the burden of proof as to value lay with her.       Rothman,

65 N.J. at 233.     The trial judge stated that "[n]either party

offered any proofs as to the vehicles listed on their CIS," and

therefore the court was "not in a position to equitably divide

same."   Therefore, the judge decided that the parties would retain

their vehicles, without setoff, and the children's vehicles were

to be transferred to them.

                                  52                           A-4063-14T3
    The trial judge did not abuse his discretion.     We affirm the

decision regarding the parties' automobiles.


    Defendant argues the judge erred by requiring the parties to

share in the un-emancipated children's college expenses, without

applying the factors set forth in Newburgh v. Arrigo, 
88 N.J. 529

(1982).    She also argues the judge's finding that the parties'

eldest child was un-emancipated was contrary to prevailing law.

    Pursuant to Newburgh, when a parent seeks contribution to a

child's college expenses, the court must consider the following


           (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; (6) 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

                                53                           A-4063-14T3
            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.

88 N.J. at 545.]

     The trial judge noted the parties' eldest and youngest child

each attended college away from home. The judge found both parties

were "very supportive of the children and clearly intend they

finish their education."        However, the record lacks any other

findings regarding any of the Newburgh factors to enable us to

determine whether the judge's decision that the parties share the

college expense on a seventy-five percent/twenty-five percent

basis was an appropriate exercise of discretion.       Therefore, this

issue is remanded for the trial judge to make the appropriate


     As set forth in Newburgh, 
88 N.J. at 543, "[a]ttainment of

ages 18 establishes prima facie, but not conclusive, proof of

emancipation."    However, "[w]hether a child is emancipated at age

18, with the correlative termination of the right to parental

support,    depends   upon   the   facts   of   each   case."     Ibid.

"[E]mancipation of a child occurs when the fundamental dependent

relationship between parent and child is terminated.      When a child

moves beyond the sphere of influence and responsibility exercised

by a parent and obtains an independent status on his or her own,

                                   54                           A-4063-14T3
generally he or she will be deemed emancipated." Bishop v. Bishop,

287 N.J.    Super.     593,    598        (Ch.    Div.    1995).         Thus,    "[t]he

demonstrable     needs    of     the    child,       not    the        child's   age,   are

determinative of the duty of support."                     Patetta v. Patetta, 
358 N.J. Super. 90, 93-94 (App. Div. 2003).

      Here, the parties' eldest child was twenty-seven years old

at the time of trial, and thus well over the presumptive age of

emancipation.      However, she was a student at Penn State, and

remained financially dependent upon her parents.                          Therefore, the

trial   judge    did   not      err    by    finding       her    un-emancipated,       and

defendant's argument in this regard lacks merit.


      Defendant argues the trial judge erred by requiring her to

pay $25,000 of plaintiff's counsel fees as a sanction for her

violation of the confidentiality agreement.                       We disagree.

      The parties signed a confidentiality agreement on October 19,

2011.   In 2013, the judge concluded defendant had violated the

confidentiality agreement, but did not issue any sanctions at that

time, noting only that defendant was bound by the agreement.

      After     hearing   the     trial       testimony          and    considering     the

evidence, the trial judge found defendant had once again violated

the agreement by offering to provide confidential information from

the parties' case to a financial reporter.                       Therefore, the judge

                                             55                                    A-4063-14T3
restrained defendant from disclosing confidential information or

documentation regarding plaintiff or ZC, and assessed a sanction

against her in the form of paying $25,000 in plaintiff's counsel

fees "expended in response to [d]efendant's violations of the

confidentiality agreement."

     "There is no doubt at all of the right of a trial judge, as

an exercise of discretion, to impose sanctions for violation of

the rules or failure to obey the orders of the court[.]"      Kohn's

Bakery, Inc. v. Terracciano, 
147 N.J. Super. 582, 584-85 (App.

Div. 1977).   We review a trial judge's enforcement of litigant's

rights pursuant to Rule 1:10-3 under an abuse of discretion

standard.   Barr, 
418 N.J. Super. at 46.

     The record supports the trial judge's decision.       Defendant

clearly violated the confidentiality agreement.     The trial judge

did not abuse his discretion by requiring payment of a sanction.


     Defendant argues the trial judge's determination regarding

counsel and expert fees and costs was erroneous.      Specifically,

defendant claims "[i]n light of the trial court's disregard of the

uncontroverted   marital   lifestyle,      the   limited   equitable

distribution award, and the amount of taxable alimony, [she] was

in need of a far greater award of fees/costs."      She also claims

that the judge erred in concluding plaintiff had already paid

                               56                            A-4063-14T3
$130,000 in her counsel fees, because the payment had come from

the proceeds from sale of the Cape Cod home, half of which belonged

to defendant.     Defendant also argues the trial judge's decision

to ignore plaintiff's misconduct was the cause of her increased

expenditure of fees.     Lastly, she argues that by requiring her to

pay all of Sziklay's fees, the court punished her for retaining

her own accounting expert.

N.J.S.A. 2A:34-23 provides: "The court may order one party

to pay a retainer on behalf of the other for expert and legal

services   when   the   respective    financial    circumstances    of   the

parties make the award reasonable and just."             Rule 5:3-5(c) sets

forth nine factors the court must consider in making an award of

counsel fees in a family action.          Essentially,

           in awarding counsel fees, the court must
           consider whether the party requesting the fees
           is in financial need; whether the party
           against whom the fees are sought has the
           ability to pay; the good or bad faith of either
           party in pursuing or defending the action; the
           nature and extent of the services rendered;
           and the reasonableness of the fees.

           [Mani v. Mani, 183        N.J.    70,   94-95   (2005)
           (emphasis omitted).]

     An award "of counsel fees is discretionary, and will not be

reversed except upon a showing of an abuse of discretion."            Barr,

418 N.J. Super. at 46.        The award here was not an abuse of


                                     57                             A-4063-14T3
      The trial judge addressed all of the factors of Rule 5:3-

5(c).    The judge concluded the certifications filed by counsel

complied with the relevant rules, and their fees, although high,

were "appropriate for the work performed." Considering the factors

under   Rule   5:3-5(c),      the    judge       concluded       plaintiff       "had    a

considerable income and can clearly afford his counsel's fees,"

and noted that he had been ordered to pay some of defendant's

fees, in an approximate amount of $130,000.                    As for defendant, the

judge acknowledged that she was "less favorably disposed," but

noted that she "has received a significant award both in terms of

equitable distribution and alimony."

      The    judge   also    found    defendant          had    achieved     a    result

"significantly better" than plaintiff's settlement proposal, which

had   been   provided   to    the    judge       under    seal     for   purposes       of

considering counsel fees. The judge stated both parties had failed

to    heed   court    orders,       noting       defendant's        breach       of    the

confidentiality agreement and plaintiff's advancement of loans to

himself in violation of court orders barring the incurrence of

further debt.

      Ultimately,     "[u]nder       all    of    the     circumstances          and    in

consideration of the factors under R[ule] 5:3-5," the judge ordered

that plaintiff was responsible for his own legal fees, with the

exception of a $25,000 credit for fees expended in response to

                                       58                                        A-4063-14T3
defendant's violations of the confidentiality agreement.         The

judge also ordered plaintiff to pay one-third of defendant's legal

fees, with "credit for any monies previously paid by him from

[p]ost-[c]omplaint earnings."

     In addition, the judge decided the parties were equally

responsible for the mediation fees, and to the extent plaintiff

paid them he was entitled to a fifty percent credit.     The judge

ordered the parties to share Politziner's fees, with plaintiff

responsible for two-thirds of his fees and defendant one-third.

The judge ordered defendant to bear all of Sziklay's fees, noting

that "however extremely qualified Mr. Sziklay is, his position in

this matter has been almost completely rejected by this [c]ourt

for the reasons previously discussed."

     We discern no error in the trial judge's reasoning.           He

appropriately balanced the Rule 5:3-5(c) factors.     Also, it was

not an abuse of discretion for the trial judge to require defendant

to contribute to the former joint expert's fees, but not require

plaintiff to contribute to a partisan expert's fees, especially

where the court has rejected his opinion.    For these reasons, we

decline to disturb the trial judge's determination on counsel and

expert fees.

     We also find defendant's claim the trial judge ostensibly

gave plaintiff a credit for paying defendant's counsel fees by

                                59                          A-4063-14T3
using defendant's equitable distribution proceeds from the sale

of the Cape Cod home to lack merit.    As set forth in the final

judgment, the judge ruled plaintiff was responsible for one-third

of defendant's fees, with a credit only for fees already paid out

of his post-complaint earnings.     Therefore, the judge did not

permit plaintiff a credit for any of defendant's fees paid out of

the Cape Cod proceeds.

     Affirmed in part; reversed and remanded in part.   We do not

retain jurisdiction.

                               60                         A-4063-14T3