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					                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5195-03T5



ANN MARIE MILBERG,

     Plaintiff-Appellant/
     Cross-Respondent,

v.

BARRY S. MILBERG,

     Defendant-Respondent/
     Cross-Appellant.
______________________________________________________________

         Submitted April 26, 2006 - Decided September 5, 2006

         Before Judges Wefing, Wecker and Graves.

         On appeal from Superior Court of New Jersey,
         Chancery Division, Family Part, Bergen County,
         FM-2-2543-00.

         Rosenfelt & D'Amato, attorneys for appellant/
         cross-respondent (Kenneth F. D'Amato, of
         counsel and on the brief).

         Carolyn R. Kristal, attorney for respondent/
         cross-appellant.

PER CURIAM

     The parties were married on May 8, 1987, and their judgment

of divorce is dated April 14, 2004.    They have two sons, Adam

and Andrew.   Their divorce trial was conducted on twenty-two

non-consecutive days, beginning on September 8, 2003, and ending
on January 16, 2004.    The trial court rendered an eleven-page

written decision on March 25, 2004.

    Plaintiff    Ann   Marie   Milberg   presents   the   following

arguments on appeal:

           POINT I

           THE TRIAL COURT'S FINDINGS AND CONCLUSIONS
           REGARDING ALIMONY, EQUITABLE DISTRIBUTION,
           CHILD SUPPORT AND COUNSEL FEES ARE CLEARLY
           AGAINST THE WEIGHT OF [sic] EVIDENCE, AND
           THE AWARDS INADEQUATE.

           POINT II

           THE   COURT   IMPROPERLY  DENIED   PLAINTIFF
           DECISION MAKING AUTHORITY REGARDING ANDREW'S
           EDUCATION AND HEALTH.

    On his cross-appeal, defendant Barry S. Milberg makes the

following arguments:

           POINT I [CROSS-APPELLANT'S POINT III]

           THE TRIAL COURT ERRED AS A MATTER OF LAW IN
           FINDING THE PREMARITAL AGREEMENT INVALID
           BASED   ON   CHANGED  CIRCUMSTANCES.    THE
           AGREEMENT IS NOT UNCONSCIONABLE AND SHOULD
           HAVE BEEN ENFORCED.

           POINT II [CROSS-APPELLANT'S POINT IV]

           THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
           AWARDING COUNSEL FEES TO BARRY.

After reviewing the record and applicable law in light of the

contentions advanced by the parties, we affirm in part, reverse

in part, and remand for further proceedings consistent with this

opinion.



                                 2                         A-5195-03T5
       At the outset, we recognize that the scope of our review is

limited.       A trial court's findings are binding on appeal when

supported by "adequate, substantial, credible evidence."                                Cesare

v. Cesare, 154 N.J. 394, 411-12 (1998).                         "[A]n appellate court

should not disturb the factual findings and legal conclusions of

the    trial    judge       unless     [it      is]   convinced      that       they   are    so

manifestly unsupported by or inconsistent with the competent,

relevant       and   reasonably        credible        evidence      as    to     offend     the

interests       of       justice."         Id.   at    412     (second      alteration        in

original) (internal quotation marks omitted).                         Such deference is

particularly appropriate when the evidence is mostly testimonial

and involves questions of credibility.                       Ibid.        "Because a trial

court hears the case, sees and observes the witnesses, [and]

hears them testify, it has a better perspective than a reviewing

court    in     evaluating           the     veracity     of     witnesses."              Ibid.

(alteration         in    original)        (internal     quotation        marks    omitted).

Furthermore,             "[b]ecause        of    the     family       courts'          special

jurisdiction and expertise in family matters, appellate courts

should accord deference to family court factfinding."                                   Id. at

413.

       Plaintiff was nineteen years old when she met defendant,

who    was    ten    or    eleven     years      older   than     she      was.        She   had

completed nine months of secretarial school after high school




                                                 3                                     A-5195-03T5
and was working as a receptionist for a sales marketing firm in

New York.

    Defendant had completed a year-and-a-half of college, and

he had two children with his first wife.                        Defendant was an

accountant      with    his    own    practice      until      1998.      Defendant

testified    that      his   business,    Barry    S.    Milberg,      Inc.,     was    a

consulting firm that created financial programs for large non-

profit institutions.

    The parties lived together for several years prior to their

marriage in 1987.            At some point, plaintiff became pregnant.

According    to     plaintiff,       defendant    was    not    happy    about       the

pregnancy, but he finally agreed to get married after she was

eight months pregnant.

    Plaintiff testified that it was a "total surprise" when

defendant presented her with a prenuptial agreement a few days

before    the      wedding.      Plaintiff        testified      she    signed       the

prenuptial agreement an hour before the wedding on May 8, 1987,

because defendant refused to go ahead with the marriage unless

she signed the agreement.            Plaintiff also claimed that she only

owned a car that she was still making payments on, and she did

not know the extent of defendant's earnings or assets when the

parties     were     married.         According     to    plaintiff,       she       had

"absolutely no choice" but to sign the agreement because:                              "I




                                         4                                     A-5195-03T5
had no money.         I had no apartment anymore.                    I had no way of

taking care of myself and supporting a child."

    Defendant         testified     that       he     presented       the   prenuptial

agreement to plaintiff "weeks" before they got married, but he

also conceded that plaintiff was eight months pregnant at the

time he gave it to her.             According to defendant, the parties

"went to a couples therapist to see if there was a potential for

[the] marriage to work out," and they discussed "the prenuptial

agreement    and      everything"      with         the     therapist.       Defendant

testified he "had no intention of marrying Ann Marie.                             I just

didn't    want   to    have   another      child          out   of   wedlock."       When

defendant    was      asked   why      plaintiff           signed     the   prenuptial

agreement at City Hall, he answered:                  "Because she thought I was

bluffing and I got up to walk out.                         Bingo, it got signed."

According   to     defendant,     he   wanted        a     prenuptial    agreement      to

avoid the kind of problems he had with his first wife over

custody    and   visitation       with     his      children.         Defendant      also

claimed that he had no assets when he met plaintiff because of

his prior divorce and his obligation to pay unallocated support

to his first wife and children in the amount of $225 per week.

    The prenuptial agreement included the following language:

                 5.2 Alimony, Maintenance or Support.
            It   is   specifically    agreed  that   upon
            termination of the marriage, ANN MARIE
            PEDULLA   shall   be   entitled  to   receive



                                           5                                     A-5195-03T5
         rehabilitative alimony for a period of three
         (3) years or until the youngest child of the
         marriage reaches the age of six (6),
         whichever is longer.   The amount of alimony
         shall be established by agreement between
         the parties or by any court of competent
         jurisdiction.     The parties specifically
         waive any right to permanent or long-term
         alimony,   maintenance   or   support   upon
         termination of the marriage, as each has
         sufficient assets in his or her own name
         with which to provide for his or her own
         needs or expenses beyond the provisions set
         forth herein.

              5.3 Custody.     The parties specifically
         acknowledge their intent to have joint
         custody   of   any    children    born   of   the
         marriage.    In furtherance of this custody
         arrangement, the parties agree that neither
         of them will establish a residence more than
         seventy (70) miles from the location of the
         marital residence at the time of any
         separation.        As     BARRY    MILBERG    has
         obligations to his children of a prior
         marriage, it is specifically agreed that in
         the event ANN MARIE PEDULLA establishes
         residence more than 15 miles from the former
         marital   residence,     she    will   personally
         transport the children to BARRY MILBERG'S
         residence to accomplish the intended joint
         custodial arrangement.      As compensation for
         transportation expenses, BARRY MILBERG shall
         reimburse ANN MARIE PEDULLA two times the
         amount permitted by the IRS as the allowable
         business   mileage    deduction     for   Federal
         Income tax purposes plus any tolls.

    Adam was born on June 7, 1987, approximately four weeks

after the wedding.   In March of the following year, the parties

purchased a four-bedroom house in Oradell, which was appraised




                                6                            A-5195-03T5
at $500,000 prior to trial.           The parties' second child, Andrew,

was born on December 24, 1988.

       Plaintiff    testified   that    the    family         frequently     traveled

during   the    marriage,    taking    trips       to    Club    Med,       Argentina,

Florida, the Bahamas, Puerto Rico, Chile, Las Vegas, Cape Cod,

Arizona, and Mexico.        Plaintiff also testified that she took the

children to Disney World every year by herself.                      During the trip

to Mexico, the family stayed with her sister, and they sometimes

stayed   with   defendant's     brother       in   Cape       Cod,    and    with    his

parents in Arizona.      Plaintiff had no idea what the trips cost.

       The parties had a nanny until Andrew was two and a half or

three years old, and the nanny went on one of the trips to

Florida.     After the nanny's employment concluded, the parties

had a "regular cleaning girl" every week, and a landscaper took

care of the lawn on a weekly basis.

       Plaintiff drove new minivans and defendant drove Cadillacs

and Lincolns.       She got a new car about every three years.                      They

went out to dinner twice a week, with and without the children.

Defendant bought plaintiff fur coats and jewelry and gave her

$500   per   week    spending   money;     defendant's          company      paid    the

household    bills.      Plaintiff     received         the    $500    per    week    by

writing out checks to herself from the business account and




                                       7                                      A-5195-03T5
either depositing them in the joint checking account or cashing

them.

       Plaintiff    testified       she    shopped      at    Bloomingdale's        and

Nordstrom, and she charged clothing on eight or ten credit cards

that were available to her.           The boys were involved in a variety

of     recreational    activities         including     snowboarding,         skiing,

paintball, and skating.             Plaintiff had her hair styled in a

salon every couple of weeks, and she had weekly manicures and

pedicures.       She had facials at least once a month and occasional

massages.    Plaintiff also belonged to a health club.

       Defendant    testified   that       he   accumulated       a    debt   to    the

Internal     Revenue      Service    during      the     marriage       because      of

plaintiff's financial demands.             During the trial, defendant was

asked if it was "fair to say that the money that you owed in

taxes was money that was spent during your marriage to live on"?

He answered:       [I]t's worse than that.             I borrowed money to buy

the house, gave that money to Ann Marie, . . . . [C]ouldn't pay

that     money    back.      There        are   other        debts."      Defendant

subsequently agreed, however, that he had paid all of his income

taxes since 1992, and the court concluded that the parties were

not "living off of unpaid taxes since about 1991-92."




                                          8                                   A-5195-03T5
       During   cross-examination,         defendant      acknowledged      that

plaintiff took frequent trips with the children, and he agreed

that the family enjoyed a "nice" lifestyle:

                I never spent a lot of money. I never
           bought clothes.  I didn't do much spending.
           My one luxury, which the company paid for,
           was   a   car.     Mrs.   Milberg  traveled
           extensively with our children to South
           America[], to Mexico, to Florida, every
           year. There's no money left after she spent
           it all.

                 . . . .

                THE COURT: But my question -- I'm
           trying to understand your testimony that she
           is . . . enjoying, in your opinion, during
           this marriage a high lifestyle.

                THE WITNESS: Well, well I'm not -- you
           know, it was nice.

                THE COURT:      But    where      was    the    money
           coming from?

                THE WITNESS: From . . . taxes, from
           borrowing.   It was [w]ay more than I made.
           There's not a penny in pension. There's not
           a penny in savings, and there never has
           been.

       According to plaintiff, defendant never told her that he

could not afford the family activities, and he never asked her

to curtail expenses.       Defendant, however, testified that when he

took   plaintiff's   credit    cards       away   from   her,    "the   marriage

became more problematical."




                                       9                                A-5195-03T5
    Plaintiff testified that defendant's demeanor towards her

changed at some point, and she ultimately learned that he was

having a relationship with his secretary.            Plaintiff testified

she came home early from a weekend trip with the children and

found defendant and the secretary together in the marital bed.

According to plaintiff, "[t]hey were both clothed. . . . [S]he

was laying with her head in his lap.          She was flipping through a

magazine. . . . [T]he television was on and there were two

glasses of wine on the night table."

    Defendant testified that he knew plaintiff was coming home

"[s]o [he] got into bed with Miss Mitchell."               He admitted that

he "orchestrated" the "encounter."           Defendant claimed that he

and plaintiff had a verbal agreement that they did not have to

be monogamous but that he could not "embarrass her by bringing

somebody home."       He testified that he orchestrated the encounter

to embarrass plaintiff, because he wanted her "to really clearly

understand     that    our   arrangement    was   over."       The    parties

separated in December 1999.

    The Uniform Premarital Agreement Act ("the Uniform Act"),

enacted   in   1988,     governs   the    contents   and    enforcement     of

premarital agreements.        See N.J.S.A. 37:2-31 to -41.            Because

the parties in this case executed their agreement in 1987, it is

not subject to the provisions of the Uniform Act.                    N.J.S.A.




                                     10                              A-5195-03T5
37:2-41.    However, "[p]remarital agreements executed before the

Uniform Act are . . . enforceable, so long as they satisfy

certain conditions."          Savage-Keough v. Keough, 373 N.J. Super.

198, 202 (App. Div. 2004).            "To be enforceable, an antenuptial

agreement signed prior to the passage of the Uniform Act must be

voluntarily entered into, not unconscionable, and based on full

financial disclosure."         Id. at 203.       Some of the factors courts

consider    in    determining      enforceability         of    an    antenuptial

agreement are the opportunity the spouse had to obtain legal

advice and to reflect on the decision to sign the agreement.

Hawxhurst v. Hawxhurst, 318 N.J. Super. 72, 80 (App. Div. 1998).

In other words, "[p]re-nuptial agreements made in contemplation

of marriage are enforceable if they are fair and just."                   Pacelli

v.    Pacelli,   319   N.J.    Super.    185,    189   (App.    Div.),     certif.

denied, 161 N.J. 147 (1999).

       Here, the trial court found that in 1986, the year before

the     prenuptial     agreement        was     signed,    plaintiff       earned

approximately      $16,000      and     defendant      earned        approximately

$36,000, but that plaintiff "was a homemaker during almost the

entire marriage."       At the time of trial, plaintiff was working

part-time as a secretary/receptionist for a psychiatrist earning

approximately $15 per hour.           Nevertheless, the trial court found

that plaintiff could earn "at a minimum $35,000 to $40,000 per




                                        11                                A-5195-03T5
year as a very competent secretary if not a paralegal," but the

court   also   found   that   the   parties'   "difference   in   potential

income" was close to $100,000.         Because of the disparity in the

parties' earning potential and the length of the marriage, the

trial court concluded that the prenuptial agreement was "not

only    unreasonable    but   unconscionable."       Moreover,    even    if

defendant presented plaintiff with the proposed agreement four

weeks before the wedding, as he testified, when she was eight

months pregnant, the totality of the circumstances supports the

conclusion that the agreement is not enforceable.

       The trial court ordered defendant to pay plaintiff alimony

in the amount of $2,500 per month.             Its reasons for doing so

included the following:

                [T]he court believes that the Plaintiff
           does not have a realistic grasp on the
           parties[']   financial    situation.     The
           Defendant, throughout the marriage, has
           indulged   the   financial   whims   of  the
           Plaintiff thus creating the aura that money
           was no object.    Clearly, the Plaintiff was
           permitted to write corporate checks for
           whatever she desired. The Defendant created
           an illusion that he was a money tree and the
           Plaintiff reveled in it.    The fact is this
           couple was living up to and beyond their
           means.

                Unfortunately, the Plaintiff came to
           accept that as a reality instead of a
           fiction. The court cannot make a silk purse
           out of a sow's ear.       The court truly
           believes that Defendant's gross income is
           legitimately $134,000 per year.   The court



                                     12                            A-5195-03T5
           is not convinced that Plaintiff has proven a
           marital lifestyle significantly higher than
           what this decision together with an imputed
           income will provide her net of taxes.      It
           also believes that Plaintiff's asserted life
           style is not sustainable on Defendant's
           legitimate income.    Plaintiff can't expect
           she will receive alimony commensurate with
           the life style that she grew into during the
           last five years of the marriage.    Defendant
           has offered to be responsible for the
           children's     needs     including    school.
           Plaintiff can't have it both ways.         If
           Defendant is going to assume the costs of
           their education and support, Defendant just
           can't afford to pay Plaintiff's demands.

                Defendant is not going to be happy with
           the court's decision either.    Plaintiff is
           relatively young and can work full time.
           She probably can earn $40,000 per year.
           While Defendant is providing child support
           and whatever it costs for Adam at DiSisto or
           some other private school, he can only
           afford to pay Plaintiff $2,500 per month in
           alimony with child support for Andrew of
           $234 per week.

    Thus, the trial court focused on defendant's ability to

pay, and, at the time, defendant's ability to pay was severely

limited   because   he   was   paying   for   Adam's   attendance     at   an

expensive private school, which cost "+/- $75,000 per year."

That expense, however, no longer exists.          Adam turned eighteen

on June 7, 2005, and he is no longer attending the DiSisto

School.   Moreover, defendant's ability to pay alimony is only

one of the statutory factors to be considered when determining

the amount of alimony to be paid.




                                   13                               A-5195-03T5
       The basic purpose 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).                        "The

supporting    spouse's     obligation       is    set   at    a    level    that    will

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

(1990) (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980)).                           "Bare

survival is not the proper standard, it is the quality of the

economic    life    during    the    marriage      that      determines     alimony."

Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998).

       N.J.S.A. 2A:34-23(b) sets out twelve, non-exclusive factors

that    a   court   must     consider       in    deciding        whether   to     award

permanent alimony and, if so, in what amount.                        The three most

important considerations in fixing an alimony award are:                             (1)

the dependent spouse's needs; (2) the dependent spouse's ability

to contribute to the fulfillment of those needs; and (3) the

supporting spouse's ability to maintain the dependent spouse at

the former standard of living to which the parties had become

accustomed prior to their separation.               Crews, supra, 164 N.J. at

24.

       When reviewing an alimony award, we consider whether the

trial   court's     findings    are    supported        by    sufficient     credible

evidence present in the record, whether the trial court failed




                                        14                                    A-5195-03T5
to consider controlling legal principles, and whether the trial

court abused its discretion.                    Heinl v. Heinl, 287 N.J. Super.

337, 345 (App. Div. 1996).                     Plaintiff argues that the trial

court failed to consider all of the relevant factors, failed to

accurately        analyze      defendant's       past       earnings,    and   "failed      to

evaluate         or     make    findings        regarding        defendant's         earning

capacity."            Based on our review of the record, we find these

arguments persuasive.

      The    trial        court        found    that        between     1995   and      1999,

defendant's "adjusted gross income was +/- $184,000 per year."

As part of its calculations, the trial court imputed an income

for 1996 of $140,000 because there were no tax returns for that

year.       In    other       years,    however,          defendant   filed    a   separate

income tax return in plaintiff's name with the filing status of

married filing separately, together with his own return.                                These

returns show that the average annual adjusted gross income for

the   period      from     1995    to    1997       was    $205,511.66    calculated        as

follows:

                       1995              $ 207,709
                       1996                No returns available
                       1997                201,606
                       1998                207,220
                                          __________
                                         $ 616,535 ÷ 3 = $205,511.66

      For 1999, the year the parties separated, defendant filed a

joint tax return showing an adjusted gross income of $143,877.



                                               15                                    A-5195-03T5
But he testified that in 1999, he actually received a total of

$220,000:

                 THE COURT: -- how much of that did you
            actually collect?

                 THE WITNESS:     In     1999,     I    collected
            $100,000 --

                   THE COURT: Of that --

                 THE WITNESS: -- that I already paid tax
            on in prior years.

                   THE COURT: Which would be part of that
            --

                 THE WITNESS: Part of that year, part of
            the year before that, part of the year
            before that. So in 1999, I had $100,000 of
            nontaxable income.      After that, it just
            stopped,   because    I    wound   down  the
            corporation.

                 THE COURT: All right.   So in 1999, at
            what point did you become an employee of the
            present --

                 THE WITNESS: One, I've been an employee
            of Larsen and I became an employee of SMMW
            on 1/1/99.

                   THE COURT: And your salary for 1/1/99
            was?

                 THE WITNESS:     A     hundred     and   twenty
            thousand.

                 THE COURT: So in '99            cash   flow   you
            actually collected $220,000?

                   THE WITNESS: That is correct.




                                   16                                A-5195-03T5
    Later   the    same   day,   however,   defendant   agreed   that   his

gross income for 1999 was $181,000, and that none of it was

salary:

               THE COURT: He received $41,532 on
          account of receivables.     In addition to
          that, the pass through from the corporation
          to him was $131,300. It wasn't salary.

               MR. ROSENFELT: [Plaintiff's          Attorney]
          So what was his '99 income, Judge?

               THE COURT: His '99 income would             be,
          gross, 143 plus I think the 41,000.

                  Is that right?

                  THE WITNESS: Correct.

               MR. ROSENFELT: So his gross income was
          $181,000.

                  THE COURT: Right.

                  MR. ROSENFELT: In 1999.

               THE COURT: That's right.          And he just
          testified to that.

    In    light     of    this     conflicting    testimony      regarding

defendant's income in 1999, and the trial court's failure to

explain the basis for imputing only $140,000 of income for 1996,

we are satisfied that defendant's average gross income for the

five-year period from 1995 to 1999 substantially exceeded the

figure calculated by the trial court.         In addition, we conclude

that the trial court failed to establish plaintiff's reasonable

needs, and it failed to make specific findings with respect to



                                    17                            A-5195-03T5
other relevant statutory factors, including defendant's earning

capacity.       N.J.S.A. 2A:34-23(b)(5); see also Lynn v. Lynn, 165

N.J. Super. 328, 341 (App. Div.), certif. denied, 81 N.J. 52

(1979) (noting that "earning capacity or prospective earnings"

are    proper       elements        for    the      court's        consideration           when

determining the amount of alimony to be paid).

       Plaintiff      also    argues      that      although       she        is    capable   of

working,      and    does      in    fact      work      part-time,            "the     court's

imputation of income in the amount of $40,000 is unrealistic and

unsupported by any evidence offered at trial."                                We agree that

the    evidence      was     insufficient          to   support         the    finding     that

plaintiff "probably can earn $40,000 per year" as a secretary or

paralegal.       Finally, plaintiff notes that the trial court failed

to    consider      whether    income       should      be    imputed         to    defendant,

because he is voluntarily underemployed.                       We are confident that

these arguments will be addressed at the remand hearing and that

the trial court will take into consideration all of the relevant

facts and circumstances when determining the appropriate amount

of permanent alimony to be paid by defendant to plaintiff.

       Because of the need to reconsider and redetermine alimony,

the   child    support       award     will    also     have       to    be    recalculated.

Moreover,     the    trial     court      recognized         the     need      to     "revisit"

defendant's      child       support      obligation         "when      Adam's        situation




                                              18                                       A-5195-03T5
changes    or   in   the    event   Andrew's     situation      should   change."

Although the present record does not fully reflect Adam's and

Andrew's    current     situation,     it   is    clear    that   Adam    is     now

nineteen years old, and he is not attending the DiSisto school.

Thus, defendant's child support obligation must be reconsidered

at the remand hearing.

    Plaintiff        also   contends   that      the    trial   court    erred   in

denying her decision-making authority for Andrew's health and

education.      The relevant provisions of the judgment of divorce

are as follows:

            3. Custody of Andrew

                 a. Residential custody of Andrew shall
            remain with the Plaintiff, as [long] as she
            continues to reside in the present school
            district, River Dell, i.e., she resides in
            River Edge or Oradell, Bergen County, New
            Jersey.

                 b. If Plaintiff moves                 out of that
            school district, residential               custody shall
            be reassessed.

                 c. Defendant shall be responsible for
            making the educational and medical decisions
            regarding Andrew, these decisions must be in
            accordance with the recommendations made by
            the child study team.    Defendant needs to
            learn to work cooperatively with the child
            study    team    in    regard    to    their
            recommendations.

    The trial court's findings and conclusions on this issue

were limited to the following:




                                       19                                 A-5195-03T5
                 Neither party wants the other party to
            have   the    major    decision   making   power.
            Clearly    Andrew    should   reside   with   his
            mother, as long as she remains in the River
            Dell School system and Defendant may have
            the visitation he requests, as well as
            visitation with Andrew on Father's Day. Any
            major decision concerning Andrew's education
            and health shall be made by the Defendant
            and   must    be    in    accordance   with   Dr.
            Sugarman's recommendations.

    Although Dr. Sugarman did recommend that "educational and

medical    decisions     regarding     Andrew"      should      be   defendant's

responsibility, he failed to adequately explain the basis for

his recommendation.        In addition, Dr. Sugarman's report to the

court    noted    that   defendant   "tends    to    overestimate      Andrew's

academic    and     intellectual     abilities."          Consequently,       Dr.

Sugarman's report contains this additional recommendation to the

court:     "While    [defendant]     will   have    the   responsibility      for

making the educational and medical decisions regarding Andrew,

these decisions must be in accordance with the recommendations

made by the child study team."          We conclude that the trial court

abused its discretion when it granted the child study team final

decision-making authority for Andrew's health and education.

    As noted in Dr. Sugarman's report, defendant acknowledged

that "it would be in Andrew's best interests for his mother to

continue    to    have   residential    custody."         Dr.    Sugarman   also

reported that Andrew told him, "I want to live with my mom and I




                                       20                               A-5195-03T5
want    her      to    be    the   one    who    makes    decisions."         Given   these

circumstances, and in light of Andrew's age, the court must set

forth      its    specific         findings      and    conclusions     regarding        this

issue.

       Plaintiff            also   claims       that    the    trial   court     erred    in

determining that the business known as Barry S. Milberg, Inc.

was not subject to equitable distribution because it was "no

longer a viable entity."                  Plaintiff concedes, however, that she

"was not able to value the business due to her limited funds and

the     fact      that       defendant      actually       stopped     'operating'        the

company."        According to plaintiff, the court "should have taken

into       account      the    business        and     defendant's     conduct    when    it

distributed           the    parties'     only    asset,      the   marital    residence."

The trial court ordered that the equity in the marital home was

to    be    equally         divided,     and     plaintiff     subsequently      purchased

defendant's interest in the home.

       A trial court has broad discretion in determining how to

divide marital assets.                 Wadlow v. Wadlow, 200 N.J. Super. 372,

377 (App. Div. 1985).                    The applicable standard of review is

whether the allocation falls within a reasonable exercise of the

trial judge's discretion.                 See LaSala v. LaSala, 335 N.J. Super.

1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001);

Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div.




                                                 21                               A-5195-03T5
1978).     Here, based on our review of the record, we find no

abuse of discretion or reversible error.

    Each of the parties claims that the trial court erred in

failing to award counsel fees.               While an allowance for counsel

fees and costs in a matrimonial case is discretionary, Williams

v. Williams, 59 N.J. 229, 233 (1971), N.J.S.A. 2A:34-23 requires

a court to "consider the factors set forth in the court rule on

counsel fees, the financial circumstances of the parties, and

the good or bad faith of either party."                 Moreover, R. 5:3-5(c)

requires a court to consider, in addition to the information

required to be submitted pursuant to R. 4:42-9, the following

factors:

                 (1) the financial circumstances of the
            parties; (2) the ability of the parties to
            pay their own fees or to contribute to the
            fees    of    the   other    party;    (3)    the
            resonableness     and   good   faith    of    the
            positions advanced by the parties; (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.

    In     this   case,   the   trial     court    failed    to   analyze    these

pertinent factors.        See Mayer v. Mayer, 180 N.J. Super. 164,

169-70   (App.    Div.)   (noting    award        of   counsel    fees    involves

critical    review   of   nature    and      extent    of   services     rendered,



                                        22                                A-5195-03T5
complexity      and       difficulty       of      issues     determined,          and

reasonableness and necessity of time spent by counsel rendering

legal   services),        certif.     denied,     88   N.J.   494    (1981).           We

therefore remand this issue to the trial court.                    See R. 1:7-4(a)

(requiring    the     trial     court     to    make    findings     of    fact    and

conclusions of law on each issue).

    We have considered each of the remaining contentions raised

by the parties in light of the record, the briefs, and the

applicable    legal    principles,        and     we   conclude     that   they    are

without    merit    and    do   not     warrant    extended    discussion         in    a

written opinion.      R. 2:11-3(e)(1)(A) & (E).

    As to plaintiff's appeal, we affirm in part, reverse in

part, and remand for further proceedings consistent with this

opinion.     With respect to defendant's cross-appeal, we affirm in

part and remand for further proceedings in accordance with this

opinion.    We do not retain jurisdiction.




                                          23                                A-5195-03T5

				
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