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Donna Lizak, N/K/A Zawatski v. Thomas Lizak


April 2, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2109-10.

Per curiam.


Submitted March 21, 2012 --

Before Judges Graves and J. N. Harris.

Defendant Thomas Lizak appeals from the May 27, 2011 order of the Family Part requiring him, commencing on March 1, 2012, to pay $190 in weekly child support for his two children. We affirm.

Lizak and plaintiff Donna Zawatski were married in May 1993, and divorced in November 2010. An amended judgment of divorce -- the product of a negotiated settlement -- was entered on November 10, 2010. That judgment required, among many other things, Lizak to pay child support of $88 per week for one year following the sale of the parties' marital home plus $14,000 annual permanent alimony. Thereafter, Lizak's child support obligation was to be reduced to $65 per week, and alimony was adjusted to $11,000 per year. These amounts corresponded with the $20,000 income imputation to Zawatski for that first year, and $35,000 annually thereafter.

On March 14, 2011, subject to the dismissal of a pending application by Zawatski for a final restraining order pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, the Family Part entered a consent order that resulted in Lizak "promptly execut[ing] and deliver[ing] a quit claim deed in favor of [Zawatski] for the former marital home." The order additionally provided, in pertinent part, as follows:

In consideration of [Lizak's] deed to [Zawatski], [Zawatski] waives alimony that would have been payable by [Lizak] to [Zawatski] under the amended judgment of divorce filed November 10, 2010. This is a permanent waiver of alimony.

Furthermore, the order stated: "The [parties'] child support calculation shall be examined to determine what the support calculation will be without alimony."

The parties were unable to assent to a satisfactory child support calculation. Consequently, the court was called upon to decide the dispute. It held that Lizak's argument that "the

[c]court should consider the value of the equity in the martial home that [Lizak] transferred to [Zawatski] as an equivalent income stream to the alimony for which it was exchanged" was "untenable for several reasons."*fn1

First, the court ruled that it would be "improper to view the equity transfer as a substitute income stream for alimony" because the "former marital home is a non[-]income producing asset." Relying upon the child support guidelines, the court noted that the combined net income of the parties was the touchstone for decision-making. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A, ¶ 11 (2012).

Furthermore, although equitable distribution is a discretionary factor to consider in adjusting a guidelines-based child support award, the court declined to make such an adjustment because "there is no practical way [the equity in the marital home] could be made to produce income or be liquidated to generate cash." See Id. at ¶ 21. The court also noted that "Appendix IX-B to the Rules specifically excludes 'non-income producing assets' from any income determinations for child support purposes."

Lastly, the court observed that the March 14, 2011 consent order "demonstrate[ed] the parties' explicit understanding that child support would be calculated without any alimony considerations," thereby fortifying the parties' intention to retain the imputed income figures set forth in the amended judgment of divorce. Thus, the court declined to attribute income to Zawatski "based on an imputed income stream from the home equity or to abandon the income imputation as agreed to by the parties in the [amended judgment of divorce]."

On appeal, Lizak reprises the arguments he presented in the Family Part. He also contends that the court erred in its application of the law insofar as it "refused to consider anything other than spendable cash to establish [Zawatski's] share for support of the children." Lizak's arguments are unpersuasive.

We employ a limited scope of review over the factual findings of the Family Part, Cesare v. Cesare, 154 N.J. 394, 411 (1998), largely because "matrimonial courts possess special expertise in the field of domestic relations," which includes divorce, alimony and child support actions. Id. at 412. Thus, we afford great deference to a Family Part judge's discretionary decisions and factual findings. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). A determination related to alimony or child support will not be reversed unless we "conclude that the trial court clearly abused its discretion or failed to consider all of the controlling legal principles, or . . . the findings were mistaken or . . . could not reasonably have been reached on sufficient credible evidence present in the record after considering all of the proofs as a whole." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009) (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993)). The Family Part's interpretation of the law, however, is entitled to no special deference. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); see also Barr v. Barr, 418 N.J. Super. 18, 31 (App. Div. 2011).

The Family Part correctly interpreted the March 14, 2011 consent order as excluding alimony from the child support calculation. The plain language of the order -- "[t]he child support calculation shall be examined to determine what the support calculation will be without alimony" -- unambiguously precludes Lizak's attempt to revise the arrangement. Although we apply principles of equity to ensure that a matrimonial settlement agreement is fair and just, see, e.g., Petersen v. Petersen, 85 N.J. 638, 642 (1981), we apply contract principles to ascertain an agreement's meaning. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (applying to property settlement agreement the "basic rule of contractual interpretation that a court must discern and implement the common intention of the parties").

In the crucible of this matrimonial arena, both parties gave up rights in exchange for others. Zawatski waived the potential receipt of a long term income stream and obtained a fixed asset -- Lizak's equity in the marital home -- in substitution. The reciprocal benefits and burdens to Lizak are likewise apparent. The record does not reveal the true economic values of each side's gain and loss. For example, we do not know the actual value of Lizak's equity and we do not know the present value of the waived alimony. However, we do know that there were changed circumstances, as evidenced by the parties' mutual assent to remove alimony from the child support calculation. From a pragmatic perspective, the most tangible economic consequence was Zawatski's immediate revenue loss, and Lizak's annual income gain. There was neither a mistaken exercise of discretion, nor an error of law, in the Family Part's enforcement of the plain language of the consent order.


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