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                   APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-1304-10T2

EDWARD CURLEY,

           Plaintiff-Appellant/
           Cross-Respondent,

v.

ROBERTA CURLEY,

          Defendant-Respondent/
          Cross-Appellant.
________________________________

           Argued: February 1, 2012 - Decided: May 9, 2012

           Before Judges       Axelrad,        Sapp-Peterson    and
           Ostrer.

           On appeal from the Superior Court of New
           Jersey, Chancery Division, Family Part,
           Ocean County, Docket No. FM-15-834-09-C.

           Edward Curley, appellant/cross-respondent,
           argued the cause pro se.

           Joseph J. Haskins, Jr., argued the cause for
           respondent/cross-appellant.

PER CURIAM

      In   this     matrimonial      matter,     plaintiff     Edward      Curley

(husband) appeals from a pre-judgment order granting the motion

of   defendant    Roberta   Curley    (wife)     for   reconsideration      of   a

prior   order     dismissing   her   pleadings     for   failure      to   answer

interrogatories, and from the entry of partial summary judgment
exempting certain assets from equitable distribution.                  Husband

also appeals from the final judgment of divorce, challenging

portions of the equitable distribution and the quantum of the

counsel   fee   awarded   to    him.        Wife    cross-appeals    from    the

equitable   distribution,      alimony,     and    counsel   fee   awards,   the

court's refusal to allow her to offset equitable distribution

obligations, and the court's finding of dissipation of assets.

We affirm in part and reverse and remand in part on both the

appeal and cross-appeal.

                                       I.


     On December 18, 2008, husband filed a no-fault complaint

for divorce.     On May 14, 2009, the court entered a default

against wife based on her failure to accept service, and a month

later husband filed a notice for equitable distribution of all

assets.     On July 1, 2009, the parties entered into a consent

order to vacate the default against wife, and allow her to file

a responsive pleading.      On August 10, 2009, wife filed an answer

and counterclaim,1 to which husband promptly responded.

     On September 29, 2009, husband filed a motion to dismiss

for failure to comply with discovery.               By order of October 29,

2009, the court deemed the motion unopposed and dismissed wife's

1
   The counterclaim sought damages for various inter-spousal
torts.    The court subsequently severed these claims, and
transferred them to the Law Division.



                                       2                               A-1304-10T2
pleadings without prejudice.                    The order directed wife to pay

husband's counsel fees and costs of $1000.

       On       November       12,    2009,    wife       moved    for    reconsideration,

dismissal of husband's pleadings, and counsel fees.                                   Husband

filed       a     cross-motion         seeking       compliance          with     outstanding

discovery requests and counsel fees.                       Following oral argument on

January         15,    2010,    the    court    entered       an     order      vacating    its

October 2009 order dismissing wife's pleadings, directing both

parties to provide responsive interrogatory answers, and denying

both    parties'        fee     requests.           The    court   did     not    vacate    the

October 2009 fee award to husband.

       On March 31, 2010, wife filed a motion for partial summary

judgment,         arguing       that     certain          property       was     exempt    from

equitable distribution, including: (1) Greenwich Street property

in   New        York   City     (Greenwich      Street       property);         (2)   lifetime

leases for two apartments at the Greenwich Street property (New

York apartments); (3) Cedar Lane property in Teaneck (Teaneck

property); and (4) all income derived from the Teaneck property.

She also sought            discovery from husband, counsel fees, and                           a

protective order prohibiting him from taking her deposition due

to her medical and psychiatric conditions.

       Meanwhile, husband submitted a case information statement

(CIS) dated February 19, 2009, and an updated CIS dated April




                                                3                                     A-1304-10T2
19, 2010.     Wife submitted a CIS dated August 31, 2009, and an

updated CIS dated April 27, 2010.

    The     court   conducted     the   trial   on    various   dates   between

April 27, 2010, and August 18, 2010.            On May 26, 2010, following

argument,    memorialized    in    an   order    of   that   date,   the   court

granted wife's motion for partial summary judgment finding the

Greenwich Street property, the lifetime leases for the New York

apartments, and the Teaneck property were gifts to wife and not

subject to equitable distribution.              It denied the motion with

respect to the income derived from the Teaneck property.

    On June 9, 2010, the parties consented to have the court

decide the issue of counsel fees based on the trial record and

counsels' certifications of services.             On November 3, 2010, the

court issued a written opinion and final judgment of divorce.

Husband appealed and wife cross-appealed.

    On appeal, husband argues the trial court erred in: (1)

vacating    the   order   dismissing    wife's    pleadings;     (2)    granting

partial summary judgment to wife and finding certain property

exempt from equitable distribution in violation of husband's due

process; (3) the equitable distribution of marital property; and

(4) not awarding him the entire counsel fee.

    In her cross-appeal, wife argues error by the trial court

in: (1) finding income from the Teaneck property was subject to

equitable distribution; (2) directing her to make an equitable



                                        4                               A-1304-10T2
distribution       payment       without        an     offset;          (3)    finding         she

dissipated assets; (4) awarding husband permanent alimony; and

(5) awarding husband $25,000 in counsel fees and denying her

application for counsel fees.

                                           II.

      Husband testified at trial; wife did not.                               Wife presented

the   testimony     of    her    brother     Paul2      and       two    of    her       parents'

attorneys.        The    parties    were    married          in    August      1984       in    New

Jersey.      At    the   time,     husband       was    fifty-three           and    wife       was

twenty-nine years old.           They had no children.                  Before and during

their marriage, wife suffered from bipolar disorder and severe

depression.        The    parties    separated         on     July      25,    2008.           Wife

subsequently filed for divorce in New York, which she dismissed.

Husband then filed this action in New Jersey.

      For twenty-four years, the parties lived rent-free at the

Greenwich    Street      property     in     an       apartment         owned       by     wife's

family.     They also had a residence in Toms River and a rental

property    in    Bloomfield,       both   of        which    husband         had    purchased

before the marriage.

      In   1990,    they    bought    a    vacation          property         in    Cavaleiro,

Portugal for approximately $90,000.                    Husband took out an $85,000

loan using the Toms River property as security.                                    The parties

2
  For ease in reference, we refer to wife's family members by
their first names and intend no disrespect in this regard.



                                            5                                            A-1304-10T2
rented the property and used the income to take annual vacations

in Portugal.

    The     parties        kept     their     earnings         and    assets       separate.

Husband explained that he did not want anyone to accuse him of

taking    his    wife's        family's   money.       Throughout         the      marriage,

husband    paid     all    expenses       relating        to    the    Toms       River    and

Bloomfield properties.

    Husband        described        the     parties'       standard     of        living     as

modest.     During       the     marriage,       husband    worked     as     a     packaging

engineer for Sunshine Biscuits, where he earned about $60,000

annually, and later for Domino Sugar, where he initially earned

$65,000 annually.          At retirement in l997, husband's salary was

approximately $75,000.             He subsequently received social security

and pension income, which, according to his updated CIS, was

$1951    monthly        from    social    security        and    $23.95       and    $188.75

monthly from each of his two pensions.

    Husband testified that his adjusted gross income in 2007,

2008,     and    2009     was     $19,119.70,       $40,568.01,        and        $9,190.81,

respectively.       He also received income from a Fidelity IRA and

from his rental property in Bloomfield.                         In August 2009, after

three years of vacancy, he rented the Bloomfield property to a

tenant who paid $1800 monthly under a one-year lease.

    For         about     twenty-three           years,        wife    worked         as    an

administrative aide for the New York City Police Department and



                                             6                                       A-1304-10T2
earned between $20,000 and $25,000 per year.                               She retired in

2004   on   a    disability         pension       and     received        social       security

disability benefits.           As reflected in her updated CIS, her gross

earned   income        in   2008    was   $104,991.          In    2010,     she       reported

monthly income of approximately $1122 from her pension and $1276

from   social     security.          Husband       reported        that    wife     used     her

salary, and later her pension, as "pocket money" while he paid

their living expenses.

       Lawrence Keiser, wife's parents' estate and tax attorney,

testified       that    in    the    early        1990s,     wife's       father,        Sidney

Leshinsky, owned four properties that he wanted to convey to his

children after he and his wife Gloria died, while incurring the

least amount of federal and state taxes.                           In addition to the

Greenwich Street and Teaneck properties, Sidney owned a Hudson

Street property and another property.                      The Hudson and Greenwich

Street   properties          were   residential          buildings        each     containing

thirty-four apartments.               The Teaneck property consisted of a

commercial      building      with    three       stores     in    front,        six    offices

above, and a large empty building in back.

       In their initial estate plan, Sidney and Gloria conveyed a

twenty-five      percent      interest     in      each     property       to     their    four

children    in    return      for    having       each     child    sign     an    interest-

bearing note secured by a mortgage on the property.                                    For gift

tax purposes, these conveyances were made to appear as sales.



                                              7                                        A-1304-10T2
The    mortgages,      however,       were     never      recorded.        According        to

Keiser, Sidney and Gloria intended to forgive the principal and

interest       on   the      notes    using       the     maximum    annual      gift      tax

exclusion.

       In 1993 and 1995, Sidney transferred to wife and her three

brothers, Paul, Stuart, and David Leshinsky, twenty-five percent

interests in the Hudson and Greenwich Street properties.                                    In

September 1996, he conveyed to each child a twenty-five percent

interest in the Teaneck property in return for $168,750 from

each.    Neither wife nor her brothers, however, paid any money or

other    consideration          for    their       partial     ownership        interests.

Husband acknowledged he never saw any checks payable to wife's

father in amounts totaling $168,750, or noticed any withdrawals

on wife's bank statement around that time.                      He also claimed wife

never    received       any    compensation          in    return    for     her     partial

ownership in these properties, and                        they were unaware of her

interests      until      after      1996,    when      she   was    asked      to   sign     a

mortgage for $393,000.

       In 1997, it became clear the initial plan was not working

and    there    were      disputes     among      the     children       regarding      their

partial interests.             Sidney decided that each child should own

100 percent of his or her building.                       Keiser arranged for "like

kind" exchanges between the children.                         These new conveyances

also    provided       for    consideration,            although    it    was    similarly



                                              8                                      A-1304-10T2
contemplated that no payments would ever be made on the mortgage

debts.   Sidney intended to give wife 100 percent ownership of

the Teaneck property.

    Nonetheless,   Keiser   acknowledged   that   the   notes   had   not

been forgiven as of December 4, 1997, when he sent a memorandum

to wife's attorney that family members would begin foreclosure

proceedings on her mortgage notes if they could not get her to

execute the "like kind" exchanges.         In February 1998, Keiser

advised wife that he was commencing legal action in an attempt

to get more cooperation.    Meanwhile, in a letter to wife dated

January 29, 1998, Keiser recognized that wife's ownership of the

Teaneck property created a "management problem" and offered to

have David manage the property for no fee.

    On May 26, 1998, wife entered an agreement with her father

and brothers in which she would receive "fee simple title free

and clear" for the Teaneck property in exchange for signing

quitclaim deeds on the Greenwich and Hudson Street properties

(exchange agreement).   The agreement provided:

          All prior mortgages and/or previous purchase
          price payment obligations on the [Teaneck
          property] issued by any entity involving
          Sidney, Paul, Stuart or David, their heirs,
          distributees,   executors,    administrators,
          legal representatives, successors or assigns
          shall be declared by them in writing at
          Closing to be fully paid or null and void.




                                 9                              A-1304-10T2
It further provided that wife's father and brothers would pay

any   "back    taxes"   owed     on    the    building,         and   any    transfer      or

"boot" taxes arising from the exchange of properties.                             Moreover,

it relieved wife "of all responsibility and liability for any

mortgages,     purchase       prices    or        any   other    legal      or    financial

obligations" relating to the other properties involved in the

exchange.       It also acknowledged that wife never received any

income from the Teaneck, Greenwich or Hudson Street properties,

and that she never received any money in exchange for mortgage

notes   issued    by    her    father    or        brothers.          Additionally,        it

provided:

                    Sidney, Paul, Stuart and David and
              their     heirs,  distributees,    executors,
              administrators,    legal     representatives,
              successors and assigns promise never again
              to offer Roberta any documents to sign
              without prior review of said documents by
              independent legal counsel retained by her.
              Any documents presented to her otherwise
              will be automatically legally null and void.

      The exchange agreement also gave wife lifetime leases for

two apartments at the Greenwich Street property.                                 The leases

entitled her to use and live rent-free in the apartment she

occupied with plaintiff (4R) and a smaller one below it (2R).3

Until their separation ten years later, the parties used this

second apartment for rentals or guests, or for extra room, and

3
  The exchange agreement incorrectly referred to these apartments
as 3R and 4R.



                                             10                                     A-1304-10T2
continued       to   occupy     apartment        4R.      Husband        testified         wife

received these lifetime leases as a result of negotiations with

her family in which he participated.

       On August 5, 1998, Paul and Stuart separately conveyed to

wife their twenty-five percent interests in the Teaneck property

in return for $147,000 to each.                   The next day, David conveyed

his fractional interest in the same property for the identical

sum.     Also on August 6, 1998, wife signed the lease agreement

for the two New York apartments.                  In exchange for acquiring 100

percent      ownership     of   the    Teaneck         property      and   the     lifetime

leases, wife relinquished her interests in the Greenwich and

Hudson      Street   properties.         Stuart        became     sole     owner      of    the

Greenwich Street property.

       In   a   certification       dated    March       18,    2010,      Stuart      stated

that no money or other consideration was given or received in

connection with the exchange agreement.                        Keiser confirmed that

neither      wife    nor      her   brothers       paid        any    money      or      other

consideration in return for their twenty-five percent interests

in the Teaneck property.              He also testified that no payments or

consideration of any kind were conveyed in connection with any

of these transactions, and that the exchange agreement relieved

wife of liability for any mortgage with respect to the Teaneck

property.       Wife's parents filed separate 1998 gift tax returns




                                            11                                        A-1304-10T2
reflecting      the   forgiveness       of     indebtedness        on    the    Teaneck

property.

      Husband testified he performed various tasks with respect

to the Teaneck property from 1998 until July 2008.                           He handled

maintenance,     improvements,         and    upgrades.       He    redesigned         the

roofs and window wells, upgraded plumbing or saw that it was

upgraded,    and      painted     over       graffiti.        He        also    handled

bookkeeping,        collected     rent        sometimes,      addressed          tenant

concerns, hired contractors, and found new tenants.                             Husband

performed    this     work   without     any    compensation        except      out-of-

pocket reimbursements.

      Husband testified that the total annual rental income from

the   Teaneck    property     increased       from   $159,954.63        in     2000,   to

$230,000 in 2006 or 2007.              He estimated the yearly net income

(rent   minus    expenses)      from    2000    to   2008   at     $120,000.           All

profits went into accounts or funds in wife's name.

      In 2004, Stuart attempted to evict wife from the Greenwich

Street apartments.           Around this time,         wife      signed a general

power of attorney giving           husband      broad powers to handle her

property.    Husband hired an attorney to commence litigation in

New York on behalf of himself and wife against members of the

Leshinsky family to undo portions of the exchange agreement, and

to recover $5 million in damages.                    After the New York court

dismissed the parties' lawsuit, they filed an appeal.                           Husband



                                         12                                     A-1304-10T2
acknowledged wife's medical condition deteriorated during the

two years of litigation, and she attempted suicide in January

2006.     At   wife's request,         husband      withdrew the appeal after

spending $80,000 in legal expenses.                 He denied as untrue wife's

statement      at    her    deposition       that    he   "psychologically       and

emotionally" had forced her into the litigation.

    Paul testified that his sister had a difficult time making

decisions and dealing with everyday life.                 He stated that in the

summer of 2008 when he visited wife's apartment, he observed

bags of unopened new clothing, a bicycle, and new computers that

she appeared to have purchased "on the spur of the moment."                       He

was concerned she seemed to be spending "an exorbitant amount of

money."

    Husband similarly testified that wife had a tendency to

spend large sums during the manic phases of her illness.                      At a

June 2005 deposition in connection with the parties' lawsuit

against     wife's    family,     he     said     that    wife   could   "blow     a

substantial amount" in "a spending spree."

    Meanwhile, within weeks of the parties' separation in July

2008, wife asked Paul to manage the Teaneck property.                         Paul

testified he spent approximately two hours each week handling

tenant    concerns,        balancing   the      checkbook,   and   visiting      the

property "to make sure everything [was] going well."




                                         13                              A-1304-10T2
       In     September      2008,       wife's       family      contacted       an     attorney,

George Bruckman, to help manage wife's affairs.                                 Paul and Stuart

met    with    Bruckman          and    told    him     that      wife    had    spent    between

$80,000 and $100,000 the previous summer.                                 Bruckman testified

that after speaking with wife, he believed she was incapable of

handling her financial affairs and needed a trust.                                  He explained

that she had no knowledge of her assets, no ability to write

checks or understand invoices, and was incapable of managing the

Teaneck property.            At the direction of Paul, Stuart, and wife,

Bruckman prepared a revocable trust to manage wife's finances

and prevent further dissipation of her assets.

       On November 26, 2008, wife executed the Roberta D. Curley

Trust    (Curley       trust),         naming     Paul      and    Bruckman       as     trustees.

Bruckman,       who    met       with    wife     alone,         testified       that     she    was

competent to understand and execute the document.                                      The Curley

trust included the Teaneck property and most of wife's other

assets,       except       for    an     IRA     account       and       an   annuity.          Wife

maintained a separate bank account in her name, into which she

deposited       her    pension         and     social      security       disability      checks.

Bruckman      used     the       trust    funds       to   pay     wife's       bills,    and    her

insurance premiums.               He received a trustee commission.                      Paul was

paid    $1500       each    month       from    the     Curley      trust     for      serving    as

trustee       and    manager       of    the     Teaneck       property.          Wife's     other

assets were transferred to a Smith Barney Retirement Account.



                                                 14                                       A-1304-10T2
      Husband, who      was seventy-nine          years old at the time of

trial and in good health, acknowledged that wife, who was fifty-

five years old, had severe depression and bipolar disorder, that

she experienced "extreme" highs and lows, and that she had been

under    the   care   of   a   doctor       and   therapist   for   many      years.

      Bruckman testified that wife paid "nothing" for her medical

expenses, that her former psychiatrist had moved out-of-state

and she was not seeing anyone else, and that she and her family

decided to defer "a new track of care" until there was "some

definition" as to her assets and income.                 He believed wife was

receptive to the idea of moving into a senior residence at the

conclusion of this proceeding.

      Husband claimed his income was about $50,000, derived from

social security, a pension, a small stipend for Medicare from

Domino Sugar, and rent on his Bloomfield property.                  He estimated

the value of the Toms River property at $350,000, the Bloomfield

property    at     $280,000,   and    the    Portugal    property      as    between

$330,000 and $355,000.         The Toms River and Bloomfield properties

were mortgage-free, except for a loan he had taken on the Toms

River property to fund this litigation.                 Husband had not rented

the     Portugal    property    for     a    "couple    of    years"    to     avoid

additional expenditures and the difficulty of dealing with the

country's recent laws.




                                        15                                  A-1304-10T2
       Wife's updated CIS listed her gross earned income for 2008

as $104,991.       Bruckman testified that $70,746 was rental income

from   the   Teaneck       property.         At   her    deposition,     and    in   her

updated CIS, wife placed the value of the Teaneck property at

$1,700,000.         Husband,       however,       estimated     the   value     of   the

Teaneck property, as of the date of separation, at $2,300,000.

       In its opinion, the court identified the assets subject to

equitable      distribution,        and      reviewed     the   statutory       factors

articulated in N.J.S.A. 2A:34-23.1.                     It reiterated the finding

on   summary      judgment    that     the    Teaneck      property    and     lifetime

apartment leases were not subject to equitable distribution, and

added that the Toms River and Bloomfield properties were also

exempt.      It    found     the   following       properties     were   subject      to

equitable distribution:            all accounts produced from the Teaneck

property, husband's Fidelity IRA and Wachovia checking account,

and the Portugal property.

       The court also found that, between the parties' separation

in July 2008 and the filing of the New Jersey complaint in

December 2008, there was a dissipation of assets by wife in the

amount of $89,606.58.          The court awarded husband twenty percent

of the $738,592.96 in the accounts produced from the Teaneck

property, and twenty percent of the $89,606.58 in dissipated

assets, for a total of $165,639.90.                       It awarded wife twenty

percent of $190,000 in husband's Fidelity IRA, which amounted to



                                             16                                A-1304-10T2
$38,000, and twenty percent of $850 in his Wachovia checking

account, which amounted to $170.

       The court determined that the distributable value of the

Portugal property was $350,000.              It based the value entirely on

husband's     estimates,      and     noted     there    was    no     independent

documentation as to market value and the property was no longer

income-generating.           It,      therefore,        directed     husband     to

immediately    sell    the    Portugal        property    "in   a    commercially

reasonabl[e] fashion."          It    awarded sixty percent of the net

proceeds to husband, and forty percent to                   wife,    noting that

husband had been paying the carrying expenses since the rental

income had ceased.          To implement the division of assets aside

from the Portugal property, the court ordered wife to make a

lump-sum payment to husband of $127,469.90.

       The court also ordered wife to pay permanent alimony of

$100   per   week,    and   counsel    fees     of   $25,000    plus    the   $1000

previously    owed    husband.        In     determining    husband's      monthly

budget for alimony purposes, the court did not consider expenses

for the Portugal property or the expense of his home equity

loan, secured by the Toms River property, which he used to pay

his legal fees.

                                       III.

                                        A.




                                        17                                A-1304-10T2
       We first address husband's challenge to the January 15,

2010 order vacating dismissal of wife's pleadings.                                        In July 2009

the    parties,         through       counsel,             exchanged       interrogatories             and

notices       to    produce.          On    September             4,   2009,       wife     served     her

answers       to    interrogatories             and        documents.          On        September     29,

2009,    husband          filed    a       motion          to    dismiss       wife's       pleadings,

alleging       her      responses          to     discovery            were        procedurally        and

substantively deficient.                   The following month, the court granted

the    motion       and    dismissed        wife's          pleadings         without       prejudice,

noting on the order that the motion was unopposed.

       According to wife's counsel's certification filed with her

prompt motion for reconsideration, his certification                                             opposing

the initial motion was deemed by the court to have been filed

out of time and thus had not been considered.                                      He reiterated the

difficulty         he     was     having         in        responding         to    the     voluminous

requests       based      on    the    severity             of    wife's      illnesses          and   her

"fragile condition," attached a letter from her psychiatrist,

and represented he had been working with Paul and Bruckman to

obtain     the       information           and        documentation.                Wife's       counsel

further explained that although he had advised his adversary

that     he    would       respond         to     husband's            objections           to    wife's

discovery responses upon his return from a vacation out of the

country, upon his return he was served with husband's motion to

dismiss.           He   then    discussed             the       particulars         of    many    of   the



                                                      18                                         A-1304-10T2
questions and wife's responses, and the alleged deficiencies in

husband's       discovery     responses.            Husband      filed     a   lengthy

certification in opposition.

      Following oral argument, the court granted wife's motion,

noting    the     prior     order    had     been    "without      prejudice"        and

explaining,

              this case is not going to get decided by
              somebody's pleadings being thrown out for
              failure to make the discovery unless I find
              it to be [a] continuing serious refusal to
              do what needs to be done.         We've gone
              through today all of the discovery that both
              sides are seeking. I've made my rulings on
              that.   So now everybody knows what they're
              obligated to provide, and I will certainly
              permit [wife's] pleadings to be reinstated.

In its accompanying order, the court directed the parties to

provide   responsive       answers     to    specific      interrogatories.          The

parties evidently complied, as no further discovery motions were

filed.

      In support of his claim of error, husband primarily argues

that wife served her answers to interrogatories untimely, they were

deficient and not certified, and although she claimed delay was due

to her health problems,         husband urges that Bruckman could have

provided the answers on wife's behalf.

      We reject the arguments advanced by husband and conclude

the   court     appropriately       exercised    its    discretion       in    granting

wife's    motion     for     reconsideration         and    in    reinstating        her

pleadings so the matter could proceed to trial.                          See Fusco v.


                                            19                                 A-1304-10T2
Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.)

(holding      that      appellate          courts        review         a     motion        for

reconsideration for an abuse of discretion), certif. denied, 174

N.J. 544 (2002).        Though not expressly articulated by the court

as such, it presumably realized it had failed to consider and

appreciate the facts as certified by wife's counsel.                                  See R.

4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div.

l996).

      The   court    struck       wife's   pleadings          without       prejudice.       "A

dismissal     without      prejudice       means       that     there        has     been    no

adjudication on the merits and that a subsequent complaint alleging

the same cause of action will not be barred by reason of its prior

dismissal."     Czepas      v.     Schenk, 362         N.J.    Super.       216,   228    (App.

Div.),    certif.    denied,      178   N.J.     374    (2003).         It    also    awarded

husband a $1000 counsel fee.

      Courts are reluctant to impose the sanction of dismissal or

the      striking     of      a     pleading           for      failure         to       answer

interrogatories.         See Aujero v. Cirelli, 110 N.J. 566, 579-80

(1988) (stating that "[j]udges, no less than lawyers, strain to

avoid the ultimate sanction of dismissal of an affirmative claim

or striking of a responsive pleading").

      Here, there is no evidence wife intentionally disregarded

discovery rules.        The circumstances of wife's mental condition and

her inability to assist in the preparation of her case, defense




                                            20                                       A-1304-10T2
counsel's vacation, and his untimely submission of a response to

the initial motion were certified to the court by defense counsel.

At oral argument, defense counsel further acknowledged that wife's

answers to interrogatories were not certified, but he had stated in

the cover letter that he had to get his client's certification page

signed separately, which he did ultimately.             In fact, at trial,

husband confirmed he received the signed certification.                      Rather

than slam the courthouse door on a litigant for a minor discovery

infraction, the judge correctly recognized that the objective is to

complete discovery so the claims can be determined on the merits.

Accordingly, the judge reinstated wife's pleadings, painstakingly

addressed    each   party's   objections   to   the   respective   voluminous

interrogatory responses, and provided a roadmap for completion of

discovery.     Weighing the equities, however, he declined to rescind

the $1000 counsel fee award made to husband in the initial order.

These rulings were well within the judge's broad discretion.

                                     B.

       The court granted partial summary judgment to wife after

determining husband had failed to raise a genuinely disputed

issue of material fact as to the distributable nature of the

Teaneck     property    and    apartment    leases     on   the        New    York

properties.      Wife's motion was supported by certifications of

her brother Stuart and Bruckman, with documentation.                   The court

also   heard   three   days   of   testimony    by    husband,    as    well    as

testimony from Keiser.


                                     21                                  A-1304-10T2
     Husband contends the court violated his due process rights

by   prematurely         granting          partial        summary    judgment        before

discovery was completed and both sides were fully heard.                                    We

disagree.

     The United States and New Jersey Constitutions provide that

every person is guaranteed due process of law.                            Div. of Youth &

Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.),

certif. denied, 177            N.J.      575 (2003),        cert. denied, 540           U.S.

1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).                             Due process

requires adequate notice and a fair opportunity to be heard at a

meaningful    time   and       in    a   meaningful        manner.         Ibid.;    Doe    v.

Poritz, 142 N.J. 1, 106 (1995).                      It is "a flexible [concept]

that depends on the particular circumstances."                            Doe, supra, 142

N.J. at 106.

     Every litigant with a bona fide cause of action or defense

should have the opportunity for full exposure of his or her

case.     Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193

(1988).      Generally,        a     trial    court       should    not    grant    summary

judgment when discovery on material issues is incomplete.                                  See

Mohamed v. De Salvacion, 424 N.J. Super. 489, 499-500 (App. Div.

2012)   (reversing       the       grant     of    summary    judgment       because       the

plaintiff should have been given the opportunity to complete

discovery    when    a   key        witness       whose   testimony       would     help    to

illuminate the issue had not as yet been deposed).                                 See also



                                              22                                    A-1304-10T2
Laidlow v. Hariton Mach. Co., 170 N.J. 602, 619 (2002); Minoia

v.    Kushner,   365     N.J.      Super.    304,     307    (App.    Div.),    certif.

denied, 180 N.J. 354 (2004); Wellington v. Estate of Wellington,

359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J.

493 (2003).          Discovery, however, "need not be undertaken or

completed if it will patently not change the outcome."                          Minoia,

supra, 365 N.J. Super. at 307.                   See Wellington, supra, 359 N.J.

Super.    at   496     (holding     summary        judgment    was    proper    without

additional discovery on circumstances surrounding the divorce

because the settlement agreement was clear, the plaintiff had

failed to explain what additional discovery was available and

pertinent, and no facts were in dispute).

       Here, the decision to grant partial summary judgment was

not   premature.        The     court     issued    its     ruling    more   than   four

months after it had ordered the parties to provide responsive

answers to interrogatories, and approximately one month after

the trial commenced.          There is no indication husband objected at

trial to proceeding without additional discovery.

       Moreover,     prior    to    the     court's    summary       judgment   ruling,

husband   had    the    opportunity         to    testify     and    to   cross-examine

Keiser about the exchange agreement with respect to the Teaneck

property and apartment leases.                   He also had the opportunity to

submit certifications in support of his opposition to wife's

motion.    In fact, at his March 2010 deposition, husband stated



                                            23                                  A-1304-10T2
his intention to rely on witnesses to support his position about

the    Teaneck     property.           Nevertheless,           he    did    not     submit       a

certification       from      anyone    other     than    himself,          and    called       no

other witnesses to testify on his behalf.                                 Nor does husband

explain how further discovery would have changed the outcome,

given the absence of any material issues of fact in dispute.

                                             C.

       In addition to his due process challenge, husband argues

the    court      erred      substantively        by    granting          partial        summary

judgment to wife with respect to the equitable distribution of

the Teaneck property and the lifetime leases for the New York

apartments.       We are not persuaded by his arguments.

       The court first found wife received the lifetime interests

in    the   New    York    apartments     as      a    gift     during       the    marriage.

Because     the    apartment        leases      were     not        the    result        of     any

consideration         paid     by   either        husband       or     wife,       the        court

concluded      they    were    exempt     gifts        under    the       statute    and        not

subject to equitable distribution.

       The court discussed wife's parents' estate plan and wife's

father's initial conveyance to her and each of her brothers of a

twenty-five        percent      interest          in    the         various       properties,

including the Teaneck property.                   While recognizing the plan was

to forgive the consideration at various times in the future, the

court found no record of any "forgiveness" occurring during the



                                             24                                      A-1304-10T2
time wife had a partial interest.                  However, the court found the

1998 exchange agreement, "which [husband] has testified that he

was instrumental in negotiating," then gave the Teaneck property

to   wife      as    a    "restructured"        gift.         After    citing       various

provisions in the agreement, the court determined wife did not

pay any consideration in return for her 100 percent interest in

the property, and she "wound up after '98 with no outstanding

[m]ortgage, liens, or obligations on the property[.]"

     The    court         also   found    husband     had     no   claim       of   marital

consideration in any of the properties involved in the exchange

agreement.          It cited husband's testimony that he did not know

until after 1996 that wife had received an interest in at least

two of the properties, and found husband failed to demonstrate

the properties had increased in value or any increase was the

result of some marital effort.

     Absent any consideration or marital investment, the court

found    the        Teaneck        property     was      exempt       from      equitable

distribution and there were no material facts in dispute.                                 The

court,   however,         denied     summary    judgment       with    respect      to    the

income   from       the    Teaneck     property,      citing    husband's       testimony

about    his    role       in    its   operation        and    management.           Giving

deference to husband's evidence, the court concluded that any

income   generated          from    the   Teaneck     property        as   a   result      of

husband's involvement was subject to equitable distribution.



                                           25                                       A-1304-10T2
      An appellate court reviews a grant of summary judgment de

novo, using the same standard as the trial court.                  Turner v.

Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003).            Giving the

non-moving party the benefit of all favorable inferences, the

appellate court must determine whether there is a genuine issue

as to any material fact and, if not, whether the trial court's

ruling on the law was correct.           Id. at 199; R. 4:46-2(c).          An

opposing party who offers no substantial or material facts in

opposition to the motion cannot complain if the court accepts

the uncontradicted facts in the movant's papers.                   Judson v.

Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).

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

equitable distribution of the property, both real and personal,

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

either of them during the marriage[.]"             N.J.S.A. 2A:34-23(h).

Property owned by a party at the time of marriage and held

separately,     however,   is    generally      considered   immune      from

equitable distribution.         Painter v. Painter, 65 N.J. 196, 214

(1974); Valentino v. Valentino, 309 N.J. Super. 334, 338 (App.

Div. 1998).     "[T]he income or other usufruct derived from such

property, as well as any asset for which the original property

may be exchanged or into which it, or the proceeds of its sale,

may   be   traceable   shall   similarly   be   considered   the    separate




                                    26                               A-1304-10T2
property of the particular spouse."           Painter, supra, 65 N.J. at

214.

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

or    intestate    succession"    is   also   not   subject   to   equitable

distribution.      N.J.S.A. 2A:34-23(h).       "Proof of a gift requires

evidence of unequivocal donative intent on the donor's part,

actual or symbolic delivery of the gift's subject matter, and

the    donor's     absolute      and   irrevocable     relinquishment      of

ownership."       Dotsko v. Dotsko, 244 N.J. Super. 668, 674 (App.

Div. 1990).       A party, therefore, must be able to independently

corroborate his claim of a gift exemption.              Tannen v. Tannen,

416 N.J. Super. 248, 283 (App. Div. 2010), aff'd o.b., 208 N.J.

409 (2011).       A gift will be subject to distribution if it was

used to finance the marital lifestyle, or it was placed in an

account which regularly received deposits of income and earnings

from the party's employment or received deposits of other non-

exempt monies.      Ibid.     The burden of establishing that an asset

is exempt from equitable distribution rests with the party who

seeks to exclude it.          Pascale v. Pascale, 140 N.J. 583, 609

(1995); Dotsko, supra, 244 N.J. Super. at 676.

       On appeal, husband has not presented any factual or legal

basis to disturb the court's finding that the Teaneck property

and New York lifetime apartment leases were not marital assets.

The certifications and documentary evidence clearly evidence an



                                       27                           A-1304-10T2
estate plan by wife's parents and support the court's finding

that    these    properties       were    gifts    made       to   wife,        exempt     from

equitable distribution.

       As specified in the exchange agreement, wife received "fee

simple    title    free     and    clear"       for   the       Teaneck         property    in

exchange for signing quitclaim deeds on the Greenwich and Hudson

Street    properties.         This       agreement       provided         that     prior    to

closing, all loans or mortgages would be fully paid or null and

void, and that wife's father and brothers would pay any taxes,

including       interest    on     back    taxes,        as     well      as     "boot"     or

"transfer" taxes owed on the Teaneck property.                          It also relieved

wife of any liability for mortgages, purchase prices or other

legal    or     financial    obligations          relating         to     the     properties

involved in the exchange.             Additionally, the exchange agreement

gave wife leases for two apartments, which she could use or

occupy rent free, without reference to any exchange of money or

other consideration.

       In his certification in support of wife's summary judgment

motion, Stuart explained he was fully involved in all aspects of

the gift transactions.            In l998, his family engaged in like-kind

gift    transfers    of     certain       of    the   previously-gifted              partial

interests     in   various    properties          that    had      been    owned     by     his

parents so that each sibling would own a "full, gifted, 100%

interest" in one property; the income-producing Teaneck property



                                           28                                       A-1304-10T2
was    given   to    wife       to    "help       her       meet   her     financial      needs,

particularly        in    light       of    her     severe        depression      and    bipolar

disorder."     Stuart explained that to effectuate the transaction,

wife's siblings each made a gift to her of their respective

twenty-five         percent          interests          in     the       Teaneck    property;

therefore, wife owned 100 percent of the property by gift of the

other seventy-five percent by her siblings.                              Similarly, wife and

her    other   two       siblings          gifted      to    Stuart       their    twenty-five

percent interests in the Greenwich Street properties.                                    As part

of the exchange agreement, however, Stuart gifted to wife the

lifetime   right         to    remain       rent-free        at    her    residence      at    the

Greenwich property that was by that time wholly owned by Stuart.

Thus, Stuart certified that all the 1998 inter-family transfers

were gifts, and that none of the siblings paid any money or gave

any consideration to the parents or each other in connection

with them.

       Keiser testified that, in effectuating Sidney's estate tax

plan    that   each       of    his     children        would       wholly    own    a    single

property, he prepared documents for like-kind exchanges between

the siblings.        Wife received an additional seventy-five percent

interest in the Teaneck property from her three brothers.                                       He

explained that although the deed reflected consideration and a

mortgage was prepared reflecting a debt and monthly payment,

no consideration was paid and no payments would ever be made on



                                                  29                                     A-1304-10T2
the    mortgage          debt,   as    reflected         in   the    exchange     agreement.

       Husband's testimony that he never saw his wife execute a

mortgage in connection with the Teaneck property also supports

the court's findings.                 While the donative intent is explicit in

the exchange agreement, the August 1998 deeds were contingent on

wife's paying her brothers $147,000.                           Husband, however, also

testified that he never saw any money "pass hands."                                  Such a

statement is insightful, given his deposition testimony that he

helped his wife handle her finances and showed her when to sign

checks.       It is also consistent with Stuart's statement that none

of the siblings paid any money in connection with the property

transfers.           Moreover, there was no claim at trial that this

money       was    still    owed.        Thus,      when      read    together     with    the

exchange      agreement,         the    intent      of    these      conveyances    was,    in

effect, to "gift" the Teaneck property to wife.

       Husband also generally asserts that the Teaneck property

and lifetime leases were marital assets because he was involved

in    the    negotiations        that     took      place     in     1997   and   1998    with

members of wife's family regarding the exchange agreement.                                 Our

Supreme Court recognizes that "a spouse may acquire an interest

in marital property by virtue of the mutuality of efforts during

marriage          that    contribute      to   the       creation,      acquisition,       and

preservation of such property."                  Carr v. Carr, 120 N.J. 336, 349

(1990).       The record, however, does not support the finding that



                                               30                                   A-1304-10T2
these efforts entitled husband to an interest in the properties

because he was aware of the nature of these exchanges as gifts.

Moreover, husband failed to quantify the extent of his efforts

in this regard.            The income generated from the Teaneck property

is another issue and will be discussed later in this opinion.

                                                  D.

      Both      parties      argue          the    court       erred    in    dividing       their

assets.        Husband       contends         the      court    improperly         assessed    the

value of the Portugal property at $350,000, it failed to award

him   forty     percent          of    the   increase          in    value    of   the   Teaneck

property between 1998 and 2008, and it wrongly assessed his

share     of    the    rental          income       from    the       Teaneck      property     at

$165,640.        Wife contends the income from the Teaneck property

was immune to equitable distribution.

      In determining how to distribute the marital assets, the

court   analyzed           all    of    the       statutory         factors     set   forth     in

N.J.S.A.       2A:34-23.1,            and    placed        particular        significance       on

husband's age and wife's disability.                                It recognized that the

distribution must be consistent with the unique needs of the

parties.

      Briefly summarized, the court found: the parties had been

married        for     approximately               twenty-four          years,        wife     was

permanently          and    totally          disabled,         husband       received     social

security       retirement         income      and      owned        three    properties,      wife



                                                  31                                     A-1304-10T2
received      social     security    disability         and    owned      the     Teaneck

property, husband's sole debt was a home equity loan to cover

his litigation costs, wife had no liabilities or debt, husband

actively participated in the management of the Teaneck property,

wife never made substantial contributions as a homemaker, and

wife's father had paid all of her medical expenses at least

since the parties' marriage.

      The court then divided the marital property as follows:

(1)   husband     was    entitled    to    twenty      percent     of    the     accounts

produced from the Teaneck property, and twenty percent of assets

that wife had dissipated following their separation; (2) wife

was entitled to twenty percent of husband's Fidelity IRA and

Wachovia      checking    account;        and    (3)    husband     and      wife      were

entitled to sixty and forty percent, respectively, from the sale

of    the    Portugal     property.4            The    court   directed         wife     to

immediately pay husband $127,469.90.

      The goal of equitable distribution is to bring about a fair

and just division of marital assets.                   Steneken v. Steneken, 183

N.J. 290, 299 (2005).         When distributing marital assets, a court

must:       (1)   identify     the        property       subject        to      equitable

distribution; (2) determine the value of each asset; and (3)

decide how to allocate each asset most equitably.                            Rothman v.

4
   Neither party challenges on appeal the                        court's        decisions
regarding husband's IRA and checking account.



                                           32                                    A-1304-10T2
Rothman, 65 N.J. 219, 232 (1974).                      "In every case, . . . the

court    shall     make      specific      findings     of     fact    on       the   evidence

relevant      to     all    issues       pertaining     to     asset        eligibility       or

ineligibility, asset valuation, and equitable distribution[.]"

N.J.S.A. 2A:34-23.1.              A court should apply all the factors set

forth    in   N.J.S.A.        2A:34-23.1,       and     distribute          marital     assets

consistent with the parties' unique needs.                            DeVane v. DeVane,

280 N.J. Super. 488, 493 (App. Div. 1995).

     Appellate review is narrow and determines whether the trial

court mistakenly exercised its broad discretion to divide the

parties' property.               Valentino, supra, 309 N.J. Super. at 339.

An   appellate        court       will     affirm      an     equitable         distribution

provided      "the    trial      court     could     reasonably       have       reached     its

result    from       the    evidence      presented,         and    the     award      is    not

distorted by legal or factual mistake."                       La Sala v. La Sala, 335

N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630

(2001).

                           (1) Portugal Property            (Appeal)

        The court determined the Portugal property was subject to

equitable      distribution.              It   found        that:     the    property        was

acquired      during       the    marriage,         husband    used       the    Toms       River

property as collateral for the $85,000 loan, the loan was paid

off and the lien removed in fewer than seven years, the rental

income generated from this property covered all expenses and



                                               33                                     A-1304-10T2
allowed the parties to take annual vacations in Portugal, there

was no showing         husband     used exempt assets to cover carrying

costs until he discontinued renting the property two or three

years ago, and husband admitted several times during the trial

that the property was subject to equitable distribution.                                The

court found there were no proofs presented as to the source of

funds used to pay off the $85,000 loan.

      The court valued the Portugal property at $350,000 based

entirely        on     husband's        estimates        with      "no        independent

documentation as to market value."                   The court directed forty

percent    of    the    net     proceeds    to    wife    and     sixty       percent   to

husband, explaining that husband had been paying the carrying

expenses on the property since rental income ceased.

      Husband neither challenges the finding that the Portugal

property      was      subject     to    equitable        distribution          nor     the

forty/sixty percent allocation.                  Instead, he argues that the

court improperly assessed the value of the property at $350,000

based solely on husband's opinion and without any appraisal.

      The doctrine of invited error, however, bars a litigant

from arguing on appeal that a position he advocated below and

the   judge     adopted    at    trial     was   error.         Brett    v.    Great    Am.

Recreation, Inc., 144 N.J. 479, 503 (1996); Donofry v. Autotote

Sys., Inc., 350 N.J. Super. 276, 296 (App. Div. 2001).                                Thus,

husband cannot assert on appeal that the court committed error



                                           34                                    A-1304-10T2
when    he    testified     under    oath    that    the    property's     value     was

$350,000, and chose not to produce an expert to support his

claim.

       Moreover, husband admitted at trial that he had obtained an

appraisal of the property in 2009 or 2010, which placed its

value at 245,000 euros, or $355,000.                       He explained that the

exchange rate had "plummeted in the last several weeks[,]" which

might explain why he testified at other times that the property

was worth $330,000 or $350,000.                     While the court reasonably

adopted the middle estimate, it ordered the immediate sale and

division      of    the   property      without   regard     to   the    actual    sale

price.       As we are satisfied the court provided adequate findings

to support its equitable distribution of the Portugal property,

we affirm this ruling.



         (2)       Teaneck Proceeds          (Appeal and Cross-appeal)

       Noting      his    ruling   on   summary     judgment      that   the   Teaneck

shopping center was not subject to equitable distribution, the

court then addressed the profits that arose from its operation,

which, undisputedly, husband transferred into accounts in wife's

name.        The court rejected wife's claim that the accounts were

exempt from equitable distribution as the "income or usufruct of

immune property."           Instead, the court determined the profits or

retained rental income were the equivalent of an active immune



                                            35                                 A-1304-10T2
pre-marital asset, in which husband was entitled to share based

on his marital contributions and efforts towards its growth and

development, citing, in part, Valentino, supra, 309 N.J. Super.

at 338.

      The    court    found      husband      "actively     participated   in    the

management of the Teaneck property, and that his work effort

contributed to the production of the income generated" from 1998

to   2008.     It    found      wife   was    never   capable   of    managing    the

property, explaining that she was bipolar and had "a difficult

time making decisions and dealing with everyday life."                            The

court also found no evidence that anyone other than                        husband

attended to the property during this time.

      The court relied on husband's uncontradicted testimony that

he handled all the bookkeeping, prepared spreadsheets and other

reports for the accountant, wrote checks, and reconciled the

checkbook for the shopping center complex, consisting of three

major   stores      and   six    offices      above   the   stores.     The     judge

explained:

             [H]e   collected    the   rents    sometimes,
             (although they were frequently mailed in),
             he fielded phone calls from tenants, he
             responded to problems by calling contractors
             or going to the building himself.     He sent
             out letters on behalf of [wife] identifying
             himself as Rental Manager.        [] He did
             maintenance, plumbing and painting. He made
             many improvements to the building and re-
             designed   the   roofs  and   window   wells.
             [Husband] upgraded plumbing or saw that it



                                             36                            A-1304-10T2
            was upgraded.

The court also found husband had obtained two major tenants for

the shopping center, who were still located there, although one

former    tenant   had   moved    to   another    location.       Husband    also

"negotiated a ten or fifteen year lease for [a] gymnasium" in

"empty space in the shopping center" that "included the tenant

making substantial upgrades and improvements to the building."

Additionally, husband "rented out a store as a boutique."

      The court recognized that husband received no compensation

for managing the shopping center, but was reimbursed for some of

his      out-of-pocket      expenses.            It     further    noted     the

acknowledgement of wife's brother Paul that the property was in

"very good" condition when it was turned over to him as building

manager, and that he devoted a "couple hours per week" to the

job and was paid $1500 monthly as trustee of wife's assets and

as building manager.

      The court thus found all of the accounts produced from the

Teaneck     property     were     subject   to        equitable   distribution,

itemizing eleven accounts with their balances as of December 31,

2008, the date of filing of the divorce complaint, totaling

$738,592.96.5       Based    on    husband's     "significant     efforts"    in


5
  Only one account, having a balance under $1,000, listed a
February 11, 2009 date. The court also found a large portion of
these assets were transferred into an IRA and Curley Trust so
                                                    (continued)


                                       37                              A-1304-10T2
"producing"         and    "investing"      the    income,     the     court    concluded

husband       was    entitled    to    twenty       percent     of     these    funds      or

$147,718.59.

    New Jersey has rejected the fifty/fifty mechanical division

of marital assets in favor of the division of marital property

based    on    the    application      of    equitable        principles.           Painter,

supra, 65 N.J. at 211-12; Chalmers v. Chalmers, 65 N.J. 186,

193-95    (1974);         Rothman,    supra,      65   N.J.    at    232     n.6;    DeVane,

supra, 280 N.J. Super. at 493.                    Our courts view marriage as a

partnership, and give recognition to the contributions of each

party.    Rothman, supra, 65 N.J. at 229.

    In Painter, supra, 65 N.J. at 214, which the trial judge

cited, the Court held that any property owned by a spouse at the

time of marriage remains the separate property of such spouse

and is considered an immune asset ineligible for distribution.

Under some circumstances, however, the appreciation of a pre-

owned asset during the marriage will be subject to distribution

depending on whether it is passive or active.                        Valentino, supra,

309 N.J. Super. at 338.                A passive asset fluctuates in value

based exclusively on market conditions, while an active asset

"involves      contributions         and    efforts     by    one     or     both   spouses



(continued)
the latter did not represent                      additional        assets    subject      to
equitable distribution.



                                            38                                      A-1304-10T2
toward     the    asset's       growth       and     development          which    directly

increase its value."            Ibid.        When the increase, in part or in

whole,     derives       from     the    efforts        of        the     non-owner,      the

appreciation is subject to distribution.                           Ibid.      The inquiry

then focuses on the extent to which the original investment has

been enhanced by contributions of either spouse.                            Id. at 338-39

(holding that premarital property purchased by the husband was

an active asset that increased in value due to contributions the

wife made to the home and children, which allowed him to pay

down the mortgage).

       Here,     there    is    ample    evidence       to    support        the    court's

findings    with    respect      to     husband's      active       management       of   the

Teaneck shopping center and his contribution to the income it

generated.        As the court stated, it is undisputed that when

husband managed the property from 1998 to 2008, the commercial

enterprise earned profits.                   It also is undisputed                that wife

lacked the ability to manage the property from the time she

received it in 1998.

       Moreover, there is no dispute over the work performed by

husband as manager.            Paul, who became manager after the parties'

separation, similarly testified that he handled tenant concerns,

balanced    the    checkbook,         and     visited       the    property,       spending

approximately two hours a week as building manager, "depending

upon   what's     going    on."         He    also    did    not        dispute    husband's



                                             39                                     A-1304-10T2
testimony that he found two new tenants.                                Thus, the Teaneck

property was an active asset, whose increase in value was due,

in large part to the efforts expended by husband during the

parties' marriage, and its profits were subject to equitable

distribution.

     Neither       party       challenges       the      court's        identification          of

eleven accounts produced from the Teaneck property and their

balances as of specific dates, or its determination that the

total     value     of        defendant's       assets        subject        to      equitable

distribution       as    of    the    filing      of    the       divorce    complaint         was

$738,592.96.         Thus,      the    final       step      in    making     an     equitable

distribution is to decide the most equitable allocation.                                       See

Rothman, supra, 65 N.J. at 232.

     Husband argues the court erred by awarding him only twenty

percent of these "liquid assets."                   He seeks forty percent of the

increase     in    value       between      1998       and    2008      ($240,000).             He

alternatively       sought       $680,000         (40%       of    $1,700,000)           if    the

Teaneck    property       was    deemed     a     marital         asset,     which       we   have

rejected.     Husband's rationale for the forty percent was based

on   wife's       equitable      distribution           interest        in    the     Portugal

property, for which he claimed she did nothing.

     Wife argues on cross-appeal that the court's analysis and

conclusion    that       husband      was    entitled         to    a    share      of    wife's

retained income from the exempt commercial property was flawed



                                             40                                          A-1304-10T2
because the court ignored husband's lack of documentary evidence

of    repairs      and     improvements          to     substantiate           his    "bare"

allegations, the inconsistencies in husband's claims, and his

overall lack of credibility.                  She further contends the court

incorrectly       concluded       the     property,     which      was    in    very     good

condition when it was gifted to wife in l998, with tenants and

an income stream already in place and requiring "little ongoing

effort" to manage, was an active asset.                       According to wife, the

gift included a largely sustaining stream of income that existed

regardless of whether or not husband did any of the tasks he

claimed to have done.              Wife also asserts as error the court's

refusal    to     permit     her        deposition     testimony         that    husband's

management was limited to calling a repair person.

      We   reject       wife's    cross-appeal         on   this    issue       as    without

merit.      The        court's    evidentiary         rulings      are    discretionary;

regardless, considering wife's lack of involvement in managing

her affairs, such comments would have carried little weight.

The   record      is    replete     with    credible        testimony      of    husband's

efforts    in   managing         this    large   commercial        property      over      the

decade,    with    corroborating          testimony      by    wife's     brother       Paul.

As the court noted, it is undisputed wife was unable to manage

the property and no one other than husband attended to it until

their separation, handling a variety of rental managerial duties

ranging    from        collecting        rents    and       dealing      with        tenants,



                                            41                                       A-1304-10T2
performing     maintenance,       repairs,         and        improvements         to     the

buildings, and obtaining tenants.                 Paul then similarly handled

tenant     concerns,    visited       the       property,        and    balanced          the

checkbook, for which he was paid $1500 monthly.                             We are also

satisfied this record supports the court's legal analysis and

conclusion that the retained income was an active asset subject

to equitable distribution.

    We affirm the court's decision to equitably distribute the

income   generated      from   the     Teaneck        property.         Having          found

husband's testimony credible, the court has the discretion to

determine    husband's     share       of       these    proceeds.           We     reject

husband's argument that the court erred in not awarding him a

percentage in the increase in the value of the property.                                   In

awarding    husband     twenty    percent        of     the    profits,      the        court

generally     considered       all    relevant          statutory       elements          for

equitable    distribution      under       N.J.S.A.      2A:34.23-1,         and    placed

significance on husband's age, wife's disability, and husband's

contribution to the acquisition of substantial income from the

Teaneck property.

    Nonetheless, it is unclear how the court arrived at the

twenty/eighty percent allocation.                We discern no error with the

court    basing   its     equitable         distribution          on    a    percentage

allocation of the accounts produced from the Teaneck property;

however,    because    there     is   no    explanation         for    the   percentage



                                           42                                      A-1304-10T2
chosen      by    the   court,      we    are     unable       to    assess     the    court's

rationale        and    determine        whether      it    was     equitable     under      the

circumstances.          See R. 1:7-4(a) (requiring the motion judge to

state the factual findings and correlate them with the relevant

legal conclusions); Monte v. Monte, 212 N.J. Super. 557, 565

(App. Div. 1986) (holding that the rule requiring findings of

fact   and       conclusions     of      law     is    "particularly        applicable        to

matrimonial cases" because without such findings, we are unable

to decide whether the trial court's determination was based on

substantial        credible      proof).              We    query,    for      example,      why

husband's share equated to less than the rental management fee

paid   to    Paul       when   he     assumed         the   position      in    July     2008.6

Accordingly, we remand to the trial court for additional fact

findings on the twenty/eighty percent allocation.

(3)    Offset of Wife's Equity in Portugal Property (Cross-Appeal)

       In   her    cross-appeal,          wife       asserts      error   in    the    court's

order that she make an immediate equitable distribution payment

to husband, without offering her the opportunity to offset this

amount by her equity in the Portugal property.                                 According to

wife, if the court had permitted an offset, husband could have


6
  Paul did not differentiate between which portions of the $1500
monthly fee were allotted to trustee or managerial duties.
Using a rough estimate of ten years at $18,000 a year would
equate to between twenty-four and twenty-five percent of
$738,592.96.



                                                43                                     A-1304-10T2
retained      the    Portugal       property      for   his      own    use,    which      she

contends was husband's repeatedly-stated desire, and she could

have discharged her obligations to husband by making a modest

payment.      She further contends that having imposed an "immediate

sale" order on the Portugal property, the court compounded its

error by directing only husband, and not both parties together

as co-owners, to do so, claiming that husband has demonstrated

by his actions that he will never cooperate in good faith in

selling the property.           We are not persuaded by wife's arguments.

       An offset serves to balance the benefits accrued by each

party during a marriage.               Panetta v. Panetta, 370 N.J. Super.

486,   500    (App.     Div.    2004)      (addressing        offset     in     context     of

retirement benefits), certif. denied, 182 N.J. 427 (2005).                                  We

discern no abuse of discretion by the judge who declined to do

so based on his knowledge of the parties and "feel of the case"

based on numerous motions and a lengthy trial.                          The judge found

husband      was    retired,       lived    on    social    security,         owned     three

properties, one of which he rented, and had been paying the

carrying expenses for the Portugal property since rental income

had ceased.7          As addressed in his discussion of the alimony

award,    the      judge    also    found    husband       was    incurring      a    budget

shortfall       every      month.     The    record     belies         wife's    claim      of

7
  In his reply brief, plaintiff estimates that the carrying costs
for the Portugal property are $1300 per year.



                                             44                                      A-1304-10T2
hardship.     As found by the judge, in contrast to husband, wife

lived    rent-free       in   the   Greenwich     Street   property,      owned   the

Teaneck property valued at $1,700,000, and had no liabilities.

Although wife expresses an "urgent need" to retain her assets to

meet her special needs, the record reflects that her father paid

her medical and psychiatric expenses during the marriage, and

that, at the time of trial, she paid "nothing" for her medical

care.      Accordingly, the judge's declination of an offset and

decision to require both parties to abide sale of the Portugal

property    for        realization    of    their      respective   proceeds      was

reasonable.

    As to wife's claim of bad faith by husband in failing to

cooperate in the sale of the Portugal property, that can be

addressed    in    motions      following       this   appeal    with   appropriate

submissions.           We leave to the court's discretion whether it

wishes to address that issue during the remand.

                 (4)    Dissipation of Assets (Cross-Appeal)

    In     her    cross-appeal,       wife      contends   the    court   erred    in

finding there to be a "chargeable" dissipation of assets by wife

based solely on evidence presented by husband of reduction in

the balances in wife's accounts that contained retained earnings

from the Teaneck property between July 2008, when the parties

separated, and December 2008, when the divorce complaint was

filed.     According to wife, the court could not properly conclude



                                           45                               A-1304-10T2
on the record that she dissipated marital assets with the intent

to diminish husband's share of the marital estate, as required

by the case law.           We agree the court did not make this finding

and remand on this issue.

      The court found a reduction of $117,856.58 during the four-

and-a-half months, consisting of $69,609.49 from wife's Wachovia

checking     account       and    $48,247.09     from    her    Chase       checking   and

savings     accounts.        From    these      transactions,         the    court    found

$20,000 was paid to her New York divorce attorney and $6000 was

paid to Paul as management fees for the Teaneck property for

August through November.             The court also found it was reasonable

for wife to spend $500 per month, "over and above" her social

security and pension income, for her living expenses during the

months in question.              The court, therefore, determined the total

amount of dissipated assets subject to equitable distribution

was $89,606.58, of which husband was entitled to twenty percent.

      When making an equitable distribution of marital property,

a court must consider, among other things, "[t]he contribution

of   each   party     to    the    acquisition,        dissipation,         preservation,

depreciation     or    appreciation       in     the    amount    or    value     of    the

marital property. . . ."              N.J.S.A. 2A:34-23.1(i).                Although the

Legislature did not define "dissipation" of marital property,

in   Kothari   v.     Kothari,      255   N.J.    Super.       500,    506    (App.    Div.




                                           46                                    A-1304-10T2
1992), we described the concept as a "plastic one, suited to fit

the demands of the individual case."

    Dissipation of marital assets "'may be found where a spouse

uses marital property for his or her own benefit and for a

purpose unrelated to the marriage at a time when the marriage

relationship was in serious jeopardy.'"     Kothari, supra, 255

N.J. Super. at 506 (quoting Head v. Head, 523 N.E.2d 17, 20

(Ill. App. Ct. 1988)).   Courts generally deem the distributable

marital estate to include the assets diverted by a spouse in

contemplation of divorce and for the purpose of diminishing the

other spouse's share.    Vander Weert v. Vander Weert, 304 N.J.

Super. 339, 349 (App. Div. 1997).

    To determine whether a spouse has dissipated assets, courts

consider various factors, including:

         "(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
         benefi[]ted 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."

         [Kothari, supra, 255 N.J. Super. 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)).]




                               47                        A-1304-10T2
The ultimate question is whether the assets were expended by one

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

of the marital estate.           See Kothari, supra, 255 N.J. Super. at

507, 509 (affirming the decision to compensate the wife for her

interest in marital assets dissipated by her husband while he

was   "thinking     about   and    planning        for    a   divorce"        where   the

expenditures were not made to benefit the marriage); see also

Monte,     supra,    212    N.J.        Super.     at     567-68       (holding       that

intentional      dissipation       of     marital        assets    by     one     spouse

constituted a fraud on the court, and that the other spouse

would not be charged with the debt); Siegel v. Siegel, 241 N.J.

Super. 12, 13 (Ch. Div. 1990) (finding that the defendant's

gambling    losses      which    occurred       "pre-complaint,         but    when   the

marriage was irreparably fractured," were dissipation of funds).

      In a matrimonial matter, "dissipated funds are subject to

equitable distribution, as if the funds were not dissipated at

all."    Wasserman v. Schwartz, 364 N.J. Super. 399, 414 (Law Div.

2001).      A   trial    court   has     sole    discretion       to    determine     the

dissipation of assets, and its decision will not be reversed

absent an abuse of discretion.              Kothari, supra, 255 N.J. Super.

at 506 (citing Head, supra, 523 N.E.2d at 21).

      Here, it is undisputed the funds, consisting of retained

earnings from the Teaneck property, were acquired during the

marriage.       There also does not appear to be a dispute that the



                                          48                                    A-1304-10T2
funds were taken from the account by wife after the parties'

separation.    Wife's general suggestion in her brief that some of

the reductions in the account balances might be attributable to

"fluctuat[ions] based on market forces[,]" is undermined by her

failure to present such evidence at trial, which would have been

very easy to obtain.

      The court, however, apparently found there was dissipation

based solely on the withdrawal of funds by wife.                   The court did

not analyze, for example, the reason for the withdrawals and

whether the expenditures were typical of wife's spending pattern

prior to the breakdown of the marriage, nor make any finding

that wife took the money with the intent to diminish husband's

share of the marital assets.

      This type of analysis is particularly critical here, where

there   was    significant    testimony        about      wife's     disability,

depression,     and    spending    habits.          For    example,        husband

acknowledged that wife tended to spend large amounts of money

during the manic phases of her illness, stating, she "wanted her

own   credit   card.    I   was   not    for   it   because    of    the    manic-

depressive condition where she could go out and spend or blow

$100,000."     He further explained that they discussed the matter,

and he told her "'Hon, if that's what you want to do, you've got

plenty of money.       Twenty-five thousand if you lose it is not a

big problem to you.' So she put a limit on the credit card of



                                        49                                 A-1304-10T2
$25,000."        Similarly, at his June 2005 deposition in connection

with the lawsuit against wife's family, portions of which were

read     into    the     record,    husband      stated      wife    could    "blow        a

substantial amount" of money because when "a manic depressive

becomes manic, they can go on a spending spree."                         He added that

wife did not have "the ability to handle legal affairs," and

that "even at her best, [she] needed help thinking anything with

depth[.]"

       Paul testified that his sister had spent "an exorbitant

amount    of     money"    after    the     separation       on    items    such     as    a

computer and a bicycle that she appeared to purchase on the

"spur    of     the    moment"   and    similarly     reported      that    she     had    a

difficult time making decisions.                 Similarly, Bruckman testified

that    wife     was    incapable      of   managing       money    or    handling      her

financial affairs, and she could not write checks or understand

invoices, necessitating creation of the Curley trust to prevent

further dissipation of her assets.

       In contrast, husband cites Paul's testimony that he started

managing      wife's     finances      in   August    2008   and    was    added     as    a

signatory on the subject accounts, and Paul's acknowledgement,

for example, that he wrote a $500 check on November 10, 2008

from wife's account to King Range, Inc., a company owned by

their brother Stuart.              Husband also notes the testimony about

large    sum     withdrawals       that     could    not   be     accounted   for       and



                                            50                                    A-1304-10T2
significant fees incurred by Bruckman for services rendered in

"sorting out" wife's financial papers, drawing up wife's power

of attorney, and setting up the Curley trust.                         Husband further

argues the credible evidence demonstrated that during this five-

month period wife was not in a manic state, pointing out she was

sufficiently         competent     to   evict      him     from    their      New     York

apartment in July 2008, appoint Paul as manager of the Teaneck

commercial        property     within      days    of    the      eviction,     execute

authorizations to add Paul as a signatory on her bank accounts,

retain an attorney to assist her in filing a divorce in New

York,    and    have    discussions        about   and     execute      the   power    of

attorney       and    Curley      trust.        Husband     posits       that    it    is

"inconceivable" wife did not pay for these services out of the

subject marital funds and contends the use of marital funds for

personal matters in this fashion, with the assistance of her

family   in     raiding     the    account,     constitutes       a    dissipation      of

assets under the case law.

    We remand on this issue for the court to consider and make

findings       respecting      wife's   intent      to     diminish      or   dissipate

husband's share of these marital funds.

                                           E.

    In      her      cross-appeal,      wife      argues    the       court   erred    by

awarding husband permanent alimony in light of her severe and

permanent       disabilities,        her     reasonably        foreseeable          future



                                           51                                   A-1304-10T2
medical      and     care    needs,          and    husband's        lack    of    a     need      for

alimony.         She notes that husband's complaint for divorce did not

include      a    specific        prayer       for       alimony     relief      and     he       lived

without assistance for nearly three years during which time he

renovated the Bloomfield property and took numerous vacations.

Wife further contends that while the court determined husband to

have   a     gross       income    of    $39,564.40            for   alimony      purposes,         he

testified that his income from all sources was "about $50,000"

annually, and thus the difference of about $10,500 more than

accounts for the $100 per week alimony obligation.                                          She also

objects      to    the     amount       of    the        award,    claiming       that      from    an

economic      and    health       standpoint             she   cannot    afford        to    support

husband, emphasizing that her ever-deteriorating health requires

her, among other things, to now pay individuals to manage her

assets.      We are not persuaded by wife's arguments.

       The       court    reviewed           each    party's         updated      CIS       and    tax

returns.          It then analyzed the statutory factors outlined in

N.J.S.A.         2A:34-23(b)8       before          awarding         permanent      alimony         to


8
  N.J.S.A. 2A:34-23(b) enumerates the following factors for the
court to consider in awarding alimony:

                 (1) The actual              need        and   ability      of    the
                 parties to pay;

                 (2) The duration of the marriage or civil
                 union;

                                                                                    (continued)


                                                    52                                       A-1304-10T2
(continued)
          (3)   The age, physical and emotional health
          of the parties;

         (4) The standard of living established in
         the   marriage  or   civil   union  and   the
         likelihood that each party can maintain a
         reasonably comparable standard of living;

         (5) The earning capacities, educational
         levels, vocational skills, and employability
         of the parties;

         (6) The length of absence from the          job
         market of the party seeking maintenance;

         (7) The parental   responsibilities   for   the
         children;

         (8) The time and expense necessary to
         acquire sufficient education or training to
         enable the party seeking maintenance to find
         appropriate employment, the availability of
         training and employment, and the opportunity
         for future acquisitions of capital assets
         and income;

         (9) The history of the financial or non-
         financial contributions to the marriage or
         civil   union   by   each   party   including
         contributions to the care and education of
         the children and interruption of personal
         careers or educational opportunities;

         (10) The equitable distribution of property
         ordered   and   any  payouts   on   equitable
         distribution, directly or indirectly, out of
         current   income,   to    the   extent   this
         consideration is reasonable, just and fair;

         (11) The income available to either party
         through investment of any assets held by
         that party;

                                                       (continued)


                              53                           A-1304-10T2
husband.      With regard to the parties' actual needs and ability

to pay, factor one, the court found: (1) husband's reasonable

expectation of need, based upon the standard of living during

the marriage, was $3263 monthly, excluding his home equity loan

used    to   pay   for   this     litigation;    (2)    notwithstanding    wife's

incomplete and speculative CIS, wife's monthly need was $2850;

3) husband's annual gross income, consisting of social security,

pension, and net income from Bloomfield property rental (before

taxes) was $35,564.40, and including estimated investment income

after    implementation          of     equitable      distribution     would    be

$39,564.40, resulting in an annual net income of $37,464.40, or

$3122.03      monthly;      (4)       after    implementation      of   equitable

distribution,      wife's       net    monthly   income    would   be   $8,234.75

($98,817 annually);9 and (5) husband had a monthly shortfall of

$140.97 ($3263 minus $3,122.03), while wife's net monthly income

far exceeded her monthly needs.

       As to factor two, the parties had a long term marriage of

twenty-four years.          The court noted         it addressed the third,


(continued)
          (12) The tax treatment and consequences to
          both parties of any alimony award, including
          the designation of all or a portion of the
          payment as a non-taxable payment; and
          (13) Any other factors which the court may
          deem relevant.
9
  As wife does not challenge this calculation, we eliminate the
court's explanation.



                                          54                              A-1304-10T2
fifth,       and    ninth    factors       in     its   discussion        of    equitable

distribution.          As to the fourth factor, the court found the

parties had "more than enough combined income to allow them to

continue reasonably comparable lifestyles."                       As to the eighth

factor,      the    court    found    it    likely      wife    would     "be    able    to

accumulate future capital assets and income" based on her income

from     the       Teaneck     shopping         center,       considering       she     had

accumulated over $700,000 in assets derived from its operation

since 1998.

       The     remaining     factors       were    considered     by    the     court   in

analyzing      the    income    and    needs      of    the    parties.        The    court

concluded that although it found wife's proofs "substantially

deficient" regarding her contentions as to future medical needs

and    possible       assisted       living,      it    could    not      ignore      those

considerations as to either or both parties because of wife's

emotional and psychological problems and husband's advanced age.

Although the court found both parties would leave the marriage

with     substantial        assets    available         for    unanticipated         future

needs, the court was convinced a permanent alimony award to

husband of $100 per week was appropriate in view of all the

statutory factors.

       In    divorce    actions,      a    court    may   award    alimony       "as    the

circumstances of the parties and the nature of the case shall

render fit, reasonable and just . . . ."                         N.J.S.A. 2A:34-23.



                                            55                                   A-1304-10T2
The    goal    of     alimony    "is     to    assist      the       supported    spouse      in

achieving a lifestyle that is reasonably comparable to the one

enjoyed       while    living    with       the     supporting         spouse    during      the

marriage."            Crews v. Crews, 164 N.J. 11, 16 (2000).                          A court

should set the supporting spouse's obligation at a level that

will maintain that standard.                   Innes v. Innes, 117 N.J. 496, 503

(1990).

       Courts may award one or more of four types of alimony:

permanent; rehabilitative; limited duration; or reimbursement.

N.J.S.A. 2A:34-23(b).              Permanent alimony "is awarded after a

lengthy       marriage     for    unlimited          duration         in   recognition        of

prolonged economic dependence and sustained contribution to a

marital enterprise."             Gordon v. Rozenwald, 380 N.J. Super. 55,

66    (App.     Div.    2005).         To     determine        the     type,    amount,      and

duration of an alimony award, courts must consider                                    the   non-

exclusive list of factors enumerated in N.J.S.A. 2A:34-23(b).

       A court has substantial discretion in determining whether

to    grant    alimony,    and    in     setting         the    amount.         Jacobitti     v.

Jacobitti,      135     N.J.    571,     575       (1994).       We    defer     to   a     trial

court's       findings    regarding         alimony      if     they    are    supported      by

substantial credible evidence in the record.                               Cox v. Cox, 335

N.J. Super. 465, 473 (App. Div. 2000).                         An award of support will

not    be     disturbed        "unless        it    is    'manifestly          unreasonable,

arbitrary, or clearly contrary to reason or to the evidence, or



                                               56                                      A-1304-10T2
the result of whim or caprice.'"                   Raynor v. Raynor, 319 N.J.

Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145

N.J. Super. 120, 123 (App. Div. 1976)).

      Here, the court's decision to award permanent alimony is

amply supported by the record and is entitled to deference.                             It

is not fatal that the relief was not specifically requested in

husband's      complaint;       wife's      counsel         acknowledged     at     oral

argument    that     husband    had    requested       it    during    trial,     it   is

apparent from the testimony that alimony was an issue in the

case, and the court expressly directed the parties to address

the statutory factors in their written submissions.

      We   discern     no     error   in    the    court's        decision   to    award

husband permanent alimony or in the quantum of the award.                              The

court properly considered the length of the marriage, as well as

the parties' ages, health, standards of living, and projected

budgets.       The    court    also   considered       the     disparity     in    their

incomes.      It found that husband had little chance of increasing

his income, which is comprised primarily of social security and

pensions,     while    wife    had    the    potential       to    accumulate     future

capital assets and income from the Teaneck property.

      The court also explained the mathematical calculations used

to arrive at the amount of wife's alimony obligation.                        Contrary

to   wife's    assertion,      the    court      did   not    base    alimony     on   an

incorrect calculation of husband's gross annual income contrary



                                            57                                  A-1304-10T2
to husband's testimony.           Both numbers included husband's social

security, pension and investment income.                        The difference was

that husband's estimate included the entire rental income from

the Bloomfield property of $1800 per month, while the court

analyzed   the    expenses        for    that       property    with    a    tenant     in

possession based on husband's tax return and CIS to be $1000 per

month and thus only included $800 per month as actual income

(before taxes).

    The    court     provided       ample       explanation       for    ignoring       as

speculative wife's undocumented projected expenses for moving to

a senior citizen facility and for finding her proofs deficient

regarding her claim that she would be unable to pay alimony

because of her future health needs.                     As noted by the court,

wife's   father    had     paid    her    medical       expenses       throughout      the

marriage and there was no suggestion in the record that he did

not continue to do so after the parties' separation.                          Moreover,

as further noted by the court, the Teaneck property generated

substantial      income,    and     even       if     wife     moved    to   a    senior

residence, she would be able to rent out the New York apartments

under the terms of her lifetime leases.



                                          F.

    On appeal, husband challenges the court's failure to award

him all of his counsel fees and costs.                       In support, he argues



                                          58                                     A-1304-10T2
that wife and her attorney engaged in such criminal acts as

perjury, conspiracy to commit perjury, subornation of perjury,

obstruction of justice, conspiracy to obstruct justice, false

swearing,     concealment       of    evidence,      harassment,         intentional

infliction     of     emotional      distress,     and     malicious         abuse    of

process.      On     cross-appeal,     wife    argues     the     court       erred   by

requiring her to pay counsel fees of $25,000 to husband, and

denying her fee application.           We affirm.

      Husband's      counsel    certified     that   as     of    June       10,   2010,

husband incurred counsel fees and costs of $144,074.74, with

anticipated fees for an additional twenty to thirty hours (at

$225 to $380 per hour) for preparation of the certification of

fees, written summation, and post-summation oral argument, of

which    he   paid    $110,665.21.        Husband's       counsel       requested       a

seventy-five       percent   counsel    fee    award      based    on    wife's       bad

faith,     claiming    she     "repeatedly     prolonged         and    delayed       the

matter."

      Defense counsel certified that wife's legal fees through

July 27, 2010 totaled $150,643, which included $3733 to Keiser,10

and   costs   totaled    $6,261.38.          She   paid    Keiser       in    full    and

defense counsel $62,556.88.             Defense counsel also represented


10
   The court concluded Keiser's fee was, in essence, a witness
fee, and not for legal services rendered in connection with
wife's divorce.



                                        59                                     A-1304-10T2
that wife paid legal fees to Bruckman of $69,109.59, but was not

making a fee-shifting request in connection with them.

     The court reviewed the certifications of services prepared

on behalf of both parties, and analyzed each of the factors set

forth   in    Rule   5:3-5(c),   explaining      in   detail    each   of    the

parties' positions and its findings.11            Among other things, the

court found that wife's failure to             file a timely responsive

pleading     in   the   New   Jersey    action    "clearly      necessitated"

husband's attorney      having to      move   for default      and prepare a

Notice of Application for Equitable Distribution, and husband's

"position challenging the fact that the Teaneck shopping center

was gifted to [wife]," though unsuccessful, was not "espoused in

bad faith."       On the other hand, husband's "insistence"                 upon


11
   Rule 5:3-5(c) provides that a court should                   consider     the
following factors in awarding counsel fees:

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




                                       60                              A-1304-10T2
obtaining      equitable          distribution        of      the     Greenwich        Street

apartment building was done "in bad faith" because he knew very

well that wife only had life estates in the two apartments and

husband's claim for an equitable distribution interest in the

increased value of the Teaneck shopping center, though posited

in   "good    faith,"      "caused     both        sides    extraordinary        additional

counsel fees" and could not have been sustained without husband

obtaining appraisals.

       The court noted the results were "mixed" with regard to

major positions in that husband was unsuccessful in obtaining

equitable distribution of the Teaneck shopping center and two

New York apartments or equitable distribution of the alleged

increased      value      of    the   shopping       center       during   the    marriage.

Husband      was   successful,        however,       in     his   claim    for    equitable

distribution of the proceeds derived from the shopping center,

and for alimony, though to a "rather limited extent."

       Noting examples, the court also found "both parties were

less    than       forthcoming         with        their      discovery       responses,"

explaining         that        husband's      responses           were     "evasive         and

inconclusive," and wife's responses "to a large extent, were

absent and not certified."                 Additionally, the court found that

wife's mental health was an extremely significant factor with

respect to counsel fees incurred by both parties.                                The court

believed      discovery         was    delayed        and     frustrated         by    wife's



                                              61                                      A-1304-10T2
inability to handle her own affairs, or to assist her attorney

or   trustee     in    assembling      factual    information       concerning      her

assets.       However, because "this circumstance" was the result of

wife's      mental      health      and    not    the     result     of    voluntary

interference,         the   court     concluded    it   should     not    impact    the

counsel fee determination.

      The      court    noted    as    additionally       compelling      that     both

parties could afford to pay their own counsel fees, having also

concluded each was financially able to contribute to the other

party's fee, but that wife's future excess income                          would    far

exceed husband's future excess income.                  Based on the totality of

the findings, the court ordered wife to contribute $25,000 to

husband's counsel fees and, if she had not already done so, to

pay the $1000 ordered in October 2009.

      An award of counsel fees and costs in a matrimonial action

rests    in    the     discretion     of   the    trial    court.        Williams    v.

Williams, 59 N.J. 229, 233 (1971); Strahan v. Strahan, 402 N.J.

Super. 298, 316-17 (App. Div. 2008).                Where a judge follows the

law and "makes appropriate findings of fact, a fee award is

accorded substantial deference and will be disturbed only in the

clearest case of abuse of discretion."                    Yueh v. Yueh, 329 N.J.

Super. 447, 466 (App. Div. 2000).                  A court may award counsel

fees on any claim for divorce, subject to the provisions of Rule

4:42-9.       R. 5:3-5(c).



                                           62                                A-1304-10T2
      In Mani v. Mani, 183 N.J. 70 (2005), the Court summarized

Rules 5:3-5(c) and 4:42-9(b) as follows:

                In a nutshell, 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.

           [Id. at 94-95 (emphasis omitted).]

      We first address wife's arguments that the court erred in

assessing counsel fees against her as opposed to awarding her

fees based on its finding of bad faith on husband's part and no

bad faith on her part.           Although the court did not discuss how

it   weighted   the     most   compelling    considerations,     it    evidently

found significant its findings that both parties could pay their

own attorney fees, that both parties could contribute to the

fees of the other party, and that wife's future income would far

exceed husband's.

      Bad faith for purposes of counsel fees relates only to the

conduct of the litigation, not the underlying issue of marital

fault.    Id. at 95.           Examples of bad faith include:               (1) an

unwillingness      or    intransigence      during   litigation       to    fairly

negotiate an equitable distribution of marital property; (2) the

pursuit of relief when one knows or should know that there is no

support    under        the    facts   or    law;    (3)   the    intentional



                                       63                                  A-1304-10T2
misrepresentation of facts or law to avoid or limit equitable

distribution; and (4) acts of a losing party that are vexatious

or wanton, or carried out for oppressive reasons.                  Borzillo v.

Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992).

    We are not persuaded by this argument and discern no error

in the court's analysis and award of counsel fees to husband,

not wife, under the circumstances of this litigation.                    We are

satisfied the court assessed the proper factors and provided

ample explanation for its findings.         After weighing the factors,

both positive and negative, the court determined the overall

conduct of the parties justified a minor counsel fee award to

husband.    The court did not double count in the final award the

conduct for which it assessed the $1000 fee against wife in

October    2009;   that   was   for   husband's   motion   to      dismiss     for

wife's failure to comply with discovery, not for failing to

accept    service,   necessitating      husband's   motion      for    default,

notice for equitable distribution, and subsequent consent order

to vacate default and permit her to file responsive pleadings.

Based on our review of the record we are satisfied the court was

cognizant of wife's mental health in its counsel fee analysis

and, as noted, did not penalize wife for circumstances relating

thereto.      However,    for   example,    considering      the      extent    of

involvement of her family and counsel in her financial matters

following the parties' separation in July 2008 and the fact she



                                      64                                A-1304-10T2
had been represented by counsel when she filed the New York

divorce   action        immediately      prior      to    the    present     litigation,

there was no reason for a default in this proceeding, and for

wife's    August        2009    CIS     to    be    "substantially           lacking     in

information" as to her monthly budget, assets or income and to

be unsigned by anyone on her behalf.

    We also reject wife's argument that she was entitled to

fees under Rule 4:23-3, because husband refused to admit matters

in her requests for admissions.                   This Rule provides in relevant

part:

            If a party fails to admit the genuineness of
            any document or the truth of any matter as
            requested under R. 4:22, and if the party
            requesting the admission thereafter proves
            the genuineness of the document or the truth
            of the matter, that party may apply to the
            court for an order requiring the other party
            to pay the reasonable expenses incurred in
            making that proof, including reasonable
            attorney's fees.

            [R. 4:23-3.]

    The court addressed this issue at the May 2010 hearing, at

which    time    it     found    that    husband         did    not    intend     for   his

responses to obstruct or interfere with the discovery process,

and that some of the requests also asked for legal conclusions.

It, therefore, denied without prejudice the motion to deem all

the requests admitted but stated it would consider the issue of

counsel   fees     as    to    those    answers     where       wife   had   to    present




                                             65                                   A-1304-10T2
unnecessary proofs to establish a specific fact.                              Wife cites no

examples in her brief, and we find no instance, where she later

asked   the    court          to    reconsider      this     issue    with    respect       to   a

particular request for admission, or filed a motion for counsel

fees    as     a    sanction          to     this    alleged        discovery      violation.

Nonetheless,            we    are     not    convinced       that     wife    incurred       any

significant fees on this issue and, indeed, she does not request

a specific amount of compensation.

       Finally, wife argues that the court erred by rejecting her

counsel's      initial             ninety-three-page         certification         for     legal

services, and limiting the amended submission for fees to "an

articulation of the services performed and costs incurred, the

identity of individual(s) performing the work, how much had been

paid to the attorney, how much was owed to the attorney, and the

qualifications           of    the     attorney."           We     discern    no     abuse       of

discretion         by    the       court    under    Rule    4:42-9    in     directing      the

parties to submit amended certifications.

       Turning          to     husband's       appeal,        we     reject     as       without

substantiation and merit husband's argument that he is entitled

to   all     counsel         fees    based    on    his     claims    that    wife    and    her

attorney engaged in criminal acts.                        R. 2:11-3(e)(1)(E).            We are

satisfied the quantum of the counsel fee award was well within

the court's discretion and amply supported by the record.

                                                G.



                                                66                                    A-1304-10T2
      In summary, on husband's appeal, we affirm the January 15,

2010 order reinstating wife's pleadings and May 26, 2010 order

for   partial       summary    judgment      that     the    Teaneck      property     and

lifetime leases in the New York apartments were gifts to wife

and not subject to equitable distribution.                       As to the November

3,    2010    final       judgment    of     divorce,       we   affirm    the    ruling

regarding the Portugal property; we also affirm the finding that

husband has an equitable distribution interest in the retained

income       from    the    Teaneck        shopping     center     but     remand      for

additional fact finding on the court's eighty/twenty allocation.

On wife's cross-appeal, we remand for additional fact finding on

the issue of intent to deprive with respect to the dissipation

of assets, affirm the court's declination to award her an off-

set   against       the    Portugal   property,       and    affirm      the   award    of

permanent alimony and counsel fees to husband.                     We do not retain

jurisdiction.




                                             67                                  A-1304-10T2

								
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