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

April 2, 2012

DONNA LIZAK, N/K/A ZAWATSKI, PLAINTIFF-RESPONDENT,
v.
THOMAS LIZAK, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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