Q.J v. I.L.-J
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4567-15T1
Q.J.,
Plaintiff-Appellant,
v.
I.L.-J.,
Defendant-Respondent.
__________________________________
Submitted January 17, 2018 – Decided February 20, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-0357-15.
Keith, Winters & Wenning, LLC, attorneys for
appellant (Brian D. Winters, on the briefs).
Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys for respondent (Brian McFadden-
DiNicola, of counsel and on the brief).
PER CURIAM
Plaintiff Q.J. appeals from a May 13, 2016 final judgment of
divorce. He challenges the alimony, child support, equitable
distribution, and counsel fee awards. We affirm.
I.
The following facts are taken from the record. The parties
were married on February 23, 1992, in Australia. Two children
were born of the marriage, and were seventeen and fifteen years
of age at the time of trial.
After residing in Australia, then Israel, the parties settled
in New Jersey where they purchased a single family residence. Both
children attended a private Jewish day school.
Throughout the marriage, both parties were employed and
pursued higher education. Plaintiff earned a Ph.D. in information
systems from the University of Haifa. Defendant assisted plaintiff
in obtaining his doctorate by moving to Israel and then back to
the United States, and working full-time while he obtained his
degrees. Defendant earned a Masters Degree in library science
from Rutgers University in 2006. During this time, plaintiff
supported defendant for approximately two years while she earned
her degree.
The parties' relationship deteriorated and plaintiff filed a
complaint for divorce in July 2014, terminating the parties'
twenty-two year marriage. At that time, plaintiff was employed
as a tenured professor at the New Jersey Institute of Technology
earning approximately $140,000 per year. Plaintiff also owned
Coo-E, LLC, an application based start-up he created in 2011,
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which generated limited income. Defendant, who had been employed
for the Robert Wood Johnson Foundation for a substantial portion
of the marriage, gained employment with Daimler North America
Corporation after the complaint, substantially increasing her
income to approximately $102,500 per year.
The trial occurred over five days and each party testified.
The trial judge rendered a comprehensive written decision and
signed a dual final judgment of divorce on May 13, 2016.
The trial judge addressed the parties' credibility at the
outset of her opinion, noting that, although "both parties were
similarly defensive and evasive, providing short, curt, one word
responses[,] . . . [plaintiff] was consistently argumentative to
[defendant's] counsel in an attempt to frustrate counsel rather
than provide clear answers." The judge found plaintiff "not to
be a credible witness in much of his testimony."
Defendant sought an alimony award. Plaintiff argued the
court should not award alimony. The trial judge awarded defendant
open durational alimony payable at a rate of $325 per week and
ordered plaintiff to maintain his $200,000 life insurance policy
to secure his alimony obligation. Each party sought a credit for
pendente lite expenses paid retroactive to the complaint date,
arguing a lack of financial support by the other. However, the
judge denied the claims, holding "the [c]ourt is not persuaded
3 A-4567-15T1
that the actions of either party clearly financially prejudiced
the other."
The parties had modest assets, namely, the marital residence,
two automobiles, plaintiff's business, and retirement accounts.
The parties also had credit card debt, specifically one joint
credit card. Plaintiff also had a credit card in his name.
The trial judge determined the equity in the marital residence
was $88,000, and ordered defendant could retain the residence and
pay plaintiff his fifty percent share of the equity or sell the
residence and equally divide the sales proceeds. Plaintiff
operated an Audi, which the judge determined had a value of $9,500,
and defendant operated a Ford Freestyle with a value of $3,025.
The judge calculated the difference in the value of both vehicles
and ordered plaintiff to pay defendant one half of the difference.
The judge valued plaintiff's business at $35,000 based on its
"Founders Agreement." The judge awarded defendant $10,000 as her
share of equitable distribution of the business.
Each party owned a TIAA-CREF retirement account. Plaintiff's
account was valued at $317,220, and defendant's was $177,171. The
judge ordered the marital portion of the accounts divided equally
by way of a qualified domestic relations order. Defendant was
permitted to retain a 401k account with a nominal value with her
current employer.
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The trial judge ordered the parties to equally divide a joint
bank account in Israel, and permitted the parties to keep their
individual accounts without an offset. The judgment memorialized
the parties' agreement to permit defendant to maintain custodial
accounts for the children's benefit. Plaintiff was ordered to pay
defendant one-half the value of his unused sick time as of the
date of complaint.
The trial judge equally divided the parties' joint credit
card debt totaling $22,000. Plaintiff had sought a judgment
requiring defendant to share a Chase credit card debt in his name,
but the trial judge denied the request and noted he did not supply
records regarding the account.
The trial judge ordered joint legal custody of the children
pursuant to the parties' agreement. The parties did not ask the
court to establish a parenting time schedule with the elder child
because of his age and because he had been traveling to Israel as
a high school senior for several months out of the year.
Pursuant to a pendente lite order, the court had established
a shared parenting time schedule whereby each party enjoyed a
week-on/week-off arrangement with the children. After considering
the testimony and applying the custody statutory factors, the
trial judge maintained the schedule, but permitted defendant to
keep the younger child for an additional overnight in the event
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plaintiff was not home from work by 9:00 pm on the evening during
his alternating week of parenting time.
Based on the custody determination, the trial judge ordered
plaintiff to pay defendant $88 per week in child support. The
judge calculated child support utilizing the New Jersey Child
Support Guidelines.
Each party sought a judgment for counsel fees against the
other. However, plaintiff failed to provide the court with the
amount of counsel fees he had incurred and the amount of fees he
had paid to his attorney. Through counsel, defendant certified
she incurred $70,000 in fees and had paid over $27,000.
The trial judge addressed the factors in Rule 5:3-5(c) and
awarded defendant $7,602.50 in counsel fees representing the fees
she incurred at trial. The judge concluded plaintiff had created
"repeated obstacles," which had hampered settlement of the case.
The judge concluded plaintiff unreasonably "refused to execute any
agreement simply because it was drafted by [defendant's counsel]."
The judge found plaintiff's conduct "made settlement impossible."
The judge noted plaintiff's pre-trial conduct was mirrored
by his behavior at trial. Even though plaintiff had counsel for
the trial, the judge recounted how plaintiff "himself objected to
questions rather than answering. On one occasion [plaintiff] even
rul[ed] on his own objection . . . . Regrettably, [plaintiff]
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often appeared more interested in attempting to challenge opposing
counsel's intellect than in simply providing transparent responses
to legitimate questions."
II.
With this background, we address the issues raised in
plaintiff's appeal. We begin by reciting our standard of review.
[F]indings by a trial court are binding on
appeal when supported by adequate,
substantial, credible evidence. Cesare v.
Cesare,
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).]
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"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.
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)).
III.
Plaintiff argues the trial judge erroneously analyzed the
statutory factors for alimony and entered an award that exceeds
the sum necessary to maintain the marital lifestyle. Plaintiff
also claims the judge ignored the fact the marital lifestyle was
"artificially inflated and maintained through contributions from
family and by incurring debt."
Family Part judges have broad discretion when fashioning an
alimony award. Steneken v. Steneken,
367 N.J. Super. 427, 435
(App. Div. 2004). As a result, an appellate court should
reverse only if [it] find[s] the trial judge
clearly abused his or her discretion, such as
when the stated "findings were mistaken[,]
. . . the determination could not reasonably
have been reached on sufficient credible
evidence present in the record[,]" or the
judge "failed to consider all of the
controlling legal principles[.]"
8 A-4567-15T1
[Clark v. Clark,
429 N.J. Super. 61, 72 (App.
Div. 2012) (alterations in original) (quoting
Gonzalez-Posse v. Ricciardulli, 410 N.J.
Super. 340, 354 (App. Div. 2009)).]
Open durational alimony "reflects 'the important policy of
recognizing that marriage is an adaptive economic and social
partnership.'" Glass v. Glass,
366 N.J. Super. 357, 369-70 (App.
Div. 2004) (quoting Cox v. Cox,
335 N.J. Super. 465, 479 (App.
Div. 2000)). An alimony award should consider the fact that "[t]he
supporting spouse's obligation hinges on the parties' economic
life during the marriage." Id. at 370. In addition, the dependent
spouse and children's needs should be considered so that they may
continue to live "at the standard of living they had become
accustomed to prior to the separation." Ibid. Therefore, "the
supporting spouse has a continuing responsibility 'to contribute
to the maintenance of the dependent spouse at the standard of
living formerly shared.'" Ibid. (quoting Lepis v. Lepis,
83 N.J.
139, 152 (1980)).
Pursuant to
N.J.S.A. 2A:34-23(c), "[i]n any case in which
there is a request for an award of alimony, the court shall
consider and make specific findings on the evidence about all of
the statutory factors . . . ." The trial court should consider
the evidence in light of the factors and fashion an award which
"properly balances each party's needs, the finite marital
9 A-4567-15T1
resources, and the parties' desires to commence their separate
futures[.]" Gnall v. Gnall,
432 N.J. Super. 129, 149 (App. Div.
2013), rev'd on other grounds,
222 N.J. 414 (2015).
Although plaintiff concedes the trial judge addressed all of
the statutory factors in fashioning an alimony award, he claims
the analysis was erroneous. This argument lacks merit.
The trial judge addressed each statutory factor and
referenced the testimony and evidence adduced at trial, ultimately
drawing a conclusion that the factors supported an alimony award.
The judge noted plaintiff had outearned defendant throughout the
marriage and even after the complaint, when defendant gained better
paying employment.
The judge concluded the parties maintained a middle class
lifestyle. In addition to describing the accoutrements of the
parties' lifestyle, the trial judge noted the initial Case
Information Statement (CIS) of plaintiff and defendant had
approximately similar monthly expenses of $15,369 and $13,781,
respectively. Defendant alone submitted an updated CIS for the
trial. The judge noted defendant's CIS reported monthly expenses
of $8,444, which the judge noted was "approximately $6,900 per
month less than the marital standard asserted by [plaintiff]."
The trial judge determined the parties' monthly marital
standard of living to be approximately $13,000. She found
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plaintiff's income net of taxes was $100,800 per year and
defendant's net income was $75,000. Thus, together the parties'
combined net incomes could meet their marital standard of living.
However, living separately post-divorce the judge reasoned "[she
would] be unable to craft an alimony award that will permit both
parties to meet [the parties'] ongoing expenses or to maintain the
marital standard of living."
Therefore, with the remainder of the statutory factors
supporting an award of alimony, the trial judge awarded open
durational alimony totaling $16,900 per year, tax deductible to
plaintiff, and taxable to defendant. In light of the trial judge's
extensive analysis, we fail to see how the award was erroneous.
Moreover, we reject plaintiff's unsupported claim the alimony
award permits defendant to live in excess of the marital lifestyle.
As demonstrated above, mathematically, this was clearly not so.
Also, plaintiff's claims the trial judge failed to take into
account the parties' marital lifestyle was "artificially inflated
and maintained through contributions from family and by incurring
debt" is also without merit. Beyond asserting this claim,
plaintiff's brief does not point us to objective evidence proving
the contributions from family to the marital lifestyle. Also, the
trial judge acknowledged the debt funded aspect of the marital
lifestyle, and fashioned an alimony award that does not require
11 A-4567-15T1
the incurrence of more debt in order to pay support. For these
reasons, we reject plaintiff's challenge to the alimony award.
IV.
Plaintiff argues the trial judge erred in the calculation of
child support because she used the incorrect number of overnights
for each parent. Specifically, plaintiff asserts the trial judge
calculated child support based on 199 overnights for defendant and
166 overnights for plaintiff instead of allotting each party an
equal amount of overnights to reflect their equal parenting time
schedule. Plaintiff claims if the trial court had used the correct
number of overnights and equalized the controlled expense portion
of the child support between the parties pursuant to Wunsch-Deffler
v. Deffler,
406 N.J. Super. 505 (Ch. Div. 2009), the child support
awarded would have been nominal.
We are satisfied the trial judge did not abuse her discretion
in calculating the child support award. As we noted, although the
trial judge awarded equal parenting time of the parties' younger
child, the judge found the child may spend more time with defendant
because of plaintiff's late night teaching obligations. In
addition the judge found "[plaintiff] has to travel for his
employment on occasion." Therefore, the judge's decision to
designate the number of overnights as 199 and 166 for defendant
12 A-4567-15T1
and plaintiff, respectively, was based on the adequate, credible
evidence in the record.
In addition, we note the trial court decision in Wunsch-
Deffler was not binding on the trial court. Also, plaintiff had
an opportunity to raise the applicability of the Wunsch-Deffler
calculation at trial, but failed to do so. Moreover, plaintiff
has not convinced us how the failure to award him the child support
credit was "so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice" to warrant reversal. Indeed, the trial
judge awarded $80 per week in child support. Notwithstanding the
parties' disparate earnings history and earning capacity,
plaintiff argues the appropriate child support award for a child
who is now sixteen years of age should be $12 per week. Contrary
to plaintiff's argument, reducing child support to such a
negligible amount would constitute an unjust result.
V.
Plaintiff next challenges the trial judge's equitable
distribution of the value of his business, the joint marital debt,
and the parties' vehicles. Specifically, plaintiff claims there
was no evidence to support the value of the business or the trial
judge's award of $10,000 to defendant as her share of it.
Plaintiff asserts there should have been expert testimony to
13 A-4567-15T1
properly value the business. Plaintiff also argues the trial
judge failed to distribute all of the credit card debt, and ignored
a Chase credit card debt in his name. Plaintiff argues there was
insufficient evidence for the value of the parties' automobiles
to support the equitable distribution award made by the judge.
A trial court's decision regarding equitable distribution of
marital assets is reviewed under an abuse of discretion standard.
Borodinsky v. Borodinsky,
162 N.J. Super. 437, 443-44 (App. Div.
1978). Therefore, "we will affirm an equitable distribution as
long as the trial court could reasonably have reached its result
from the evidence presented, and the award is not distorted by
legal or factual mistake." La Sala v. La Sala,
335 N.J. Super.
1, 4 (App. Div. 2000).
[T]o make an equitable distribution of marital
assets, a trial judge enters upon a three-step
proceeding. Assuming that some allocation is
to be made, he must first decide what specific
property of each spouse is eligible for
distribution. Secondly, he must determine its
value for purposes of such distribution.
Thirdly, he must decide how such allocation
can most equitably be made.
[Rothman v. Rothman,
65 N.J. 219, 232 (1974).]
Additionally, a trial judge must consider the sixteen factors set
forth in
N.J.S.A. 2A:34-23.1 in awarding equitable distribution.
Generally, the parties bear responsibility to establish
proofs of value of marital assets for purposes of equitable
14 A-4567-15T1
distribution. Painter v. Painter,
65 N.J. 196, 214 (1974). When
one party controls an asset, we have stated "it would be
unreasonable to place the burden of proof on a party not having
access to the evidence necessary to support that burden of proof."
Ozolins v. Ozolins,
308 N.J. Super. 243, 249 (App. Div. 1998)
(quoting Frantz v. Frantz,
256 N.J. Super. 90, 93 (Ch. Div. 1992)).
We find no error in the trial judge's identification,
valuation and distribution of the marital assets and liabilities.
Regarding the business, the trial judge stated,
[Plaintiff] established Coo-E business during
the marriage. Neither party provided a
valuation of Coo-E at the trial. [Plaintiff]
continues to operate the business but failed
to provide discovery regarding the business
during the litigation. [Plaintiff] testified
that he would consent to valuing [defendant's]
interest in the business at $10,000.
[Defendant] provided the Coo-E founders
Agreement . . . which stated an agreed value
of $35,000.
At the outset, we agree that plaintiff's trial testimony
could not be construed as a consent to an equitable distribution
of $10,000 of the value of Coo-E to defendant. The trial
transcript reflects plaintiff began to explain that he "was happy
with" a value, which had been communicated in a settlement offer
defendant made prior to trial, but defendant's counsel objected
to the disclosure of settlement negotiations, which the trial
judge sustained.
15 A-4567-15T1
However, there was adequate evidence in the record to refute
plaintiff's testimony the business had no value for equitable
distribution purposes. Indeed, plaintiff's pre-trial submission
contained a section entitled "The parties' business Coo-E." In
his submission plaintiff stated the following: "The parties appear
to be in agreement that the value of same is $15,000 and that
[plaintiff] will keep same and pay [defendant] $7,500." Moreover,
on cross-examination plaintiff conceded he and his business
partner had valued Coo-E at $35,000, and that plaintiff had
invested this sum in the business, which the agreement stated
would be repaid to plaintiff.
Plaintiff also argues the trial judge had no basis to conclude
the business had a value because it had no earnings. However, as
the trial judge noted, plaintiff's own conduct deprived the court
of the ability to evaluate the business. The trial judge found
it was plaintiff's "failure to fully comply with discovery demands
regarding the Coo-E business [which] prejudiced [d]efendant's
ability to fairly assess the amount of income [p]laintiff derives
from Coo-E."
Similarly, we reject plaintiff's argument the valuation of
the business was erroneous because there was no forensic valuation.
Plaintiff did not seek or raise the issue of a forensic valuation
before the trial judge. The trial judge's equitable distribution
16 A-4567-15T1
of the value of Coo-E was supported by adequate credible evidence
in the record.
With regard to the marital debt and marital vehicles, the
court held:
The parties agreed that the marital debt
consisted of the mortgage on the former
marital home and an Affinity Credit Card of
approximately $22,000. . . . In addition,
[plaintiff] testified to a credit card in his
name but did not supply records regarding said
account. Moreover, [plaintiff] confirmed that
there were numerous expenses incurred in
connection with his employment at NJIT,
including but not limited to travel, for which
[plaintiff] would have received
reimbursement.
. . . .
The parties own two . . . cars; a 2005 Ford
Freestyle used by [defendant] and a 2008 Audi
. . . used by [plaintiff]. [Defendant]
introduced evidence of the vehicles'
respective fair market value at trial with the
Ford Freestyle having a value of $3,025 and
the Audi . . . having a value of $9,500.
. . . .
[Plaintiff] shall retain sole use and
possession of the 2008 Audi . . . and
[defendant] shall retain sole use and
possession of the 2005 Ford Freestyle.
[Plaintiff] shall provide [defendant] with
one-half . . . the difference in the values
established at trial ($9,563- $3,025 = $6,538
divided by 2 = $3,269) . . . to equalize values
within thirty . . . days.
17 A-4567-15T1
Again, plaintiff failed to supply the trial judge with
objective evidence of the Chase credit card debt. This evidence
was required, given the trial judge's findings that plaintiff's
testimony generally was not credible and therefore not reliable.
In addition, the trial judge's decision to value the parties'
vehicles using the Kelley Blue Book values submitted by defendant
without objection from plaintiff was not an abuse of discretion.
Plaintiff's failure to object to the admission of defendant's
evidence of the vehicles' values coupled with his failure to adduce
objective evidence of value does not render the trial judge's
decision erroneous. For these reasons, the trial judge's equitable
distribution determinations are affirmed.
VI.
Plaintiff argues the counsel fee award was an abuse of
discretion because the trial judge concluded both parties acted
with unclean hands. Therefore, he argues the trial judge had no
basis to award counsel fees.
N.J.S.A. 2A:34-23 provides: "The court may order one party
to pay a retainer on behalf of the other for . . . legal services
when the respective financial circumstances of the parties make
the award reasonable and just." Rule 5:3-5(c) lists nine factors
the court must consider in making an award of counsel fees in a
family action. Essentially,
18 A-4567-15T1
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).]
Even when there is not a financial disparity between the parties,
"where a party acts in bad faith the purpose of a counsel fee
award is to protect the innocent party from unnecessary costs and
to punish the guilty party." Welch v. Welch,
401 N.J. Super. 438,
448 (Ch. Div. 2008) (citing Yueh v. Yueh,
329 N.J. Super. 447, 461
(App. Div. 2000)).
Fees in family actions are normally awarded
to permit parties with unequal financial
positions to litigate (in good faith) on an
equal footing. With the addition of bad faith
as a consideration, it is also apparent that
fees may be used to prevent a maliciously
motivated party from inflicting economic
damage on an opposing party by forcing
expenditures for counsel fees. This purpose
has a dual character since it sanctions a
maliciously motivated position and
indemnifies the "innocent" party from economic
harm.
[J.E.V. v. K.V.,
426 N.J. Super. 475, 493
(App. Div. 2012) (citation omitted) (quoting
Kelly v. Kelly,
262 N.J. Super. 303, 307 (Ch.
Div. 1992)).]
An award "of counsel fees is discretionary, and will not be
reversed except upon a showing of an abuse of discretion." Barr
19 A-4567-15T1
v. Barr,
418 N.J. Super. 18, 46 (App. Div. 2011). The award here
was not an abuse of discretion.
The trial judge analyzed all nine factors as enumerated in
Rule 5:3-5(c). The judge concluded:
In light of the foregoing and with particular
attention to Factors 3, 7 and 9, the Court
orders that [plaintiff] shall pay $7,602.50
in [defendant's] attorney's fees within sixty
. . . days of this Judgment of Divorce. The
[c]ourt arrives at this figure upon review of
actual trial time billed and limited
consideration of trial preparation.
[Defendant's] counsel's certification in
support of [defendant's] request for fees
meticulously details the repeated obstacles
encountered in attempting to reach settlement.
While the [c]ourt recognizes [plaintiff's]
right to retain counsel of his choosing or to
represent himself, [plaintiff's] use of three
. . . attorneys and intermittent self-
representation hampered settlement
negotiations. Moreover [defendant's]
attorney's represented that [plaintiff]
flatly refused to execute any agreement simply
because it was drafted by her rings true in
light of [plaintiff's] behavior at trial.
Despite [plaintiff's] repeated
representa[tion] that he wanted to settle the
case, his inability to commit to any specific
and global terms made settlement impossible.
Given these findings, there is no evidence of an abuse of
discretion or a failure to consider the evidence. Even though the
judge expressed difficulty with the behavior of each party in the
litigation, plaintiff's conduct during the trial supports the
award of fees to defendant for the trial. Our review of the record
20 A-4567-15T1
confirms plaintiff's behavior demonstrated a lack of self-control
and a combativeness that made the trial difficult.
In this context, the trial judge awarded defendant only ten
percent of the total fees she incurred. We disagree with
plaintiff's argument that such an award constituted a punishment
or that the award was not supported by the credible evidence in
the record.
VII.
Lastly, plaintiff argues the trial judge failed to make
appropriate findings of fact and conclusions of law. This argument
lacks sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
21 A-4567-15T1
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