ANITA CZUCHNICKI v. MICHAEL CZUCHNICKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6899-03T36899-03T3

ANITA CZUCHNICKI,

Plaintiff-Appellant/

Cross-Respondent,

v.

MICHAEL CZUCHNICKI,

Defendant-Respondent/

Cross-Appellant.

 

Argued: March 1, 2006 - Decided July 26, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Number FM-14-95-02.

Jeffrey M. Advokat argued the cause for appellant/cross-respondent (Advokat & Rosenberg, attorneys; Mr. Advokat, on the brief).

Marc C. Friedman argued the cause for respondent/cross-appellant (Alan J. Rich, of counsel; Mr. Friedman, on the brief).

PER CURIAM

In this matrimonial action, plaintiff Anita Czuchnicki appeals from several provisions of the final judgment of divorce entered on June 29, 2004, after a non-jury trial on all issues. Defendant Michael Czuchnicki cross-appeals, contending the pendente lite support award was excessive and should have been retroactively modified, and that plaintiff should have been ordered to reimburse him for real property taxes he paid pendente lite on the marital domicile. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

The parties were married on June 7, 1975. One child, Anthony, was born of the marriage on July 19, 1984. On July 9, 2001, plaintiff filed a complaint for divorce against defendant in the Family Part.

Plaintiff's motion for pendente lite relief was argued in the Family Part on October 12, 2001. The motion judge found that defendant's average annual gross income for the prior three years was approximately $185,000, and that the approximate monthly budget of plaintiff was $7,000 per month. Therefore, the judge ordered defendant to pay plaintiff the sum of $7,000 in unallocated monthly support, pending final hearing.

On or about March 25, 2002, the Morris County Probation Department filed a motion seeking an order compelling defendant to comply with the pendente lite support order, certifying that defendant was $15,000 in arrears as of that date. On May 16, 2002, the return date of that motion, a consent order was issued requiring defendant to continue to pay $7,000 per month, plus the $8,000 arrears, stating "[m]onies from liquidation of stock will be credited against the arrears on the support account[,]" and that "[c]redits made to account because of stock liquidation [are] without prejudice to ultimate allocation between the parties [at] point of equitable distribution judgment."

Defendant's motion for a reduction in the pendente lite support obligation of $7,000 per month, and plaintiff's cross-motion for enforcement were argued in the Family Part on November 8, 2002. The motion judge ruled that due to decreased expenses of plaintiff, the unallocated pendente lite support obligation of defendant would be reduced to $4,300 per month, effective October 15, 2002. The order also directed defendant to pay the college costs of Anthony.

The issues in this case were tried non-jury in the Family Part on February 9, 10, 23, and 24, 2004. On June 29, 2004, the trial judge issued a written decision and entered a final judgment of divorce, dissolving the marriage and ordering that defendant pay $4,000 per month in permanent alimony to plaintiff, commencing July 1, 2004; that neither party pay child support, but that plaintiff pay one-third and defendant two-thirds of the college costs of Anthony; that the properties known as 34 Whitehead Road, Parsippany and 559- 61 Route 10, Whippany, be listed for sale by August 15, 2004, with the net sales proceeds to be equally divided between the parties; that the retirement accounts, 401K, pension plan and IRA of the parties be divided equally between them, with values thereof to be determined as of July 9, 2001; that plaintiff retain the Subaru Forester vehicle and defendant the 1998 Mercedes Benz vehicle; that plaintiff shall receive a $8,500 credit arising out of the pendente lite sale of stock by defendant; that defendant receive a credit of $3,649 representing one-half of the 2000 IRS tax refund; that defendant pay the outstanding balance on the Macy's Visa card and receive a $1,500 credit; that the property known as 107 Garfield Avenue, Toms River is an asset of the child Anthony and not subject to equitable distribution; that plaintiff's claim for equitable distribution of CM Consulting is denied; that defendant be reimbursed for all payments he made on the home equity credit line loan from the date of separation; that defendant is solely liable for loans to family members taken during the litigation; that other than the band saw, which is distributed to defendant, each party shall keep the personal property in their possession; that each party maintain their own medical insurance coverage, and equally share medical insurance and unreimbursed medical expenses of Anthony; that defendant's claim for a credit arising out of rent paid to plaintiff is denied; that each retain bank accounts presently in their respective names; and that defendant pay a counsel fee to plaintiff in the amount of $10,000.

On August 25, 2004, the trial judge issued a supplemental opinion pursuant to R. 2:5-1(b), amplifying his decision. The judge also issued an order on August 25, 2004, amending the final judgment to provide that plaintiff receive a credit of $8,723.84 not $8,500 arising from defendant's pendente lite sale of stock; that plaintiff not defendant pay the outstanding balance of the Macy's credit card bill and defendant shall receive a credit of $3,915.82, instead of $1,500; that plaintiff shall pay the mortgage, real estate taxes, insurance and all utilities in regard to the marital home, as well as all past-due real property taxes thereon; that defendant pay all of the real estate taxes on the Whippany home; that defendant maintain insurance on his life in the minimum amount of $500,000 with plaintiff as the beneficiary for so long as the alimony obligation continues; and that plaintiff deliver to defendant certain articles of personal property.

On appeal, plaintiff argues that the trial judge erred by failing to reflect that the monthly alimony award was $4,000 net per month; by failing to make an award of child support; by requiring her to be responsible for one-third of Anthony's college expenses; by failing to require that the value of all IRAs existing as of the date of the filing of the complaint for divorce be distributed equally; by failing to equitably distribute defendant's business, CM Consulting; by requiring plaintiff to reimburse defendant for making payments on the home equity loan; by awarding defendant a credit for payment of the Macy's credit card bill; by failing to order defendant to reimburse plaintiff $31,915.83 that she was forced to liquidate to meet pendente lite expenses; by providing defendant a credit for one-half of the 2000 federal income tax refund; and by failing to award plaintiff all counsel fees and costs incurred by her in this action. Plaintiff also argues that the trial was flawed because of pretrial discovery problems.

On his cross-appeal, defendant argues that the pendente lite support award was excessive and should have been retroactively modified, and that plaintiff should have been ordered to repay defendant the sum of $9,785, representing her share of the real property taxes on the marital domicile.

After analyzing the record in the light of the written and oral arguments of the parties with the exception of the alimony issue we conclude that the arguments presented by plaintiff and by defendant are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons articulated by the trial judge in his written decisions dated June 29, 2004, and August 25, 2004. The findings and conclusions of the judge on those issues are supported by substantial, credible evidence contained in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We add the following brief comments.

The finding of the trial judge that the child Anthony is the holder of title to the Toms River real property is supported by the evidence in the record. Defendant failed to establish that plaintiff had any interest in that property; accordingly, it was not subject to equitable distribution. However, in light of that conclusion, it was fully reasonable for the court to also conclude that a child support was unwarranted. Anthony owns property, he was engaged to be married, and his other assets and income were not disclosed at the divorce hearing. Accordingly, there was no basis to conclude that Anthony required an award of child support.

Plaintiff claimed she was entitled to an equitable distribution share of CM Consulting, a business owned by defendant. However, the evidence demonstrated that CM Consulting was nothing more than a name on a business card. Moreover, if CM Consulting had any value, plaintiff failed to sustain her burden of proof in that regard.

With respect to the alimony issue, we are constrained to remand. In the June 29, 2004 written decision, after engaging in an extensive analysis, the trial judge concluded that plaintiff had reasonable monthly budgetary needs of $6,500. The judge then found that plaintiff had the ability to generate net monthly income of $2,500, and that

her monthly expenses of $6,500 can be met with her own contribution of $2500 per month plus the alimony of $4,000 per month. As these are after tax dollars, in imputing income the Court concludes that plaintiff is capable of earning between $3,000 and $3,500 per month, which would produce an approximate net available income of $2,500 plus $4,000.

[Emphasis added.]

Unless otherwise ordered, see N.J.S.A. 2A:34-23b(12), alimony payments are deductible by defendant and reportable as ordinary income by plaintiff. Thus, the $4,000 monthly alimony award is not a "net" figure to plaintiff as it is subject to taxation. Since the court's decision appears to have been designed to construct a support award that would permit plaintiff to meet her reasonable budgetary needs, we are constrained to remand the alimony issue to the Family Part for reconsideration and analysis. Plaintiff has requested that we exercise original jurisdiction, see R. 2:10-5, and order that the final judgment be amended to direct that the monthly alimony award of $4,000 be designated as a "net" amount to plaintiff. We decline to do so. We cannot discern with certainty the trial judge's intention with respect to the amount of the alimony award in relation to plaintiff's reasonable budgetary needs. Additionally, the trial judge concluded "that the defendant has the ability to pay $4,000 per month in alimony[.]" We cannot determine from this record whether defendant also has the ability to pay $4,000 in "net" alimony, or whether it would be more appropriate to designate all or a portion of the alimony award as non-taxable so that it is not taxable to plaintiff and is not deductible by defendant. This issue will require, inter alia, an analysis of the tax effect and consequences of the alimony award on the respective net incomes of the parties. We note, of course, that the trial judge also concluded "that the defendant has not been forthcoming in this litigation as to his income and ability to pay." Accordingly, this issue is remanded to the trial judge for a supplemental analysis and decision on this issue.

The judgment of divorce dated June 29, 2004, as amended and supplemented by the August 25, 2004 order is affirmed in all respects except for the issue of alimony, which is remanded to the trial judge for further findings and analysis consistent with this opinion.

Affirmed and remanded. We do not retain jurisdiction.

 

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10

A-6899-03T3

July 26, 2006