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Swajian-Bakalian v. Bakalian

October 21, 2009


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FM-02-868-04.

Per curiam.


Submitted October 5, 2009

Before Judges Lisa, Baxter and Alvarez.

In this post-judgment matrimonial matter, defendant appeals from portions of an April 29, 2008 order that denied his request for reimbursement of expenditures he made on behalf of the parties' two children; for distribution of retirement funds, a life insurance policy, brokerage accounts, jewelry and antiques; and for appointment of an attorney-in-fact to execute documents related to the transfer of the financial assets. He also appeals from the judge's decision to impute to him income of $80,000 per year in the calculation of plaintiff's child support obligation. We reject defendant's claims of error and affirm.


Plaintiff, Mary Swajian-Bakalian, and defendant, Mihran George Bakalian, were married on September 15, 1984. Two children were born of the marriage, a daughter who died in a car accident in 2006 at the age of sixteen;*fn1 and a son who was seventeen at the time of these proceedings. A dual judgment of divorce entered on November 9, 2004 incorporated the parties' property settlement agreement (PSA).

In relevant part, the PSA provides that plaintiff and defendant would share joint legal and residential custody of the children, who would reside with each parent in alternating weeks. The PSA also provides that because the parties were to share residential custody of the children equally, whichever parent was exercising alternate week parenting would be responsible for payment of all of the children's day-to-day expenses during the time the children were in that parent's home. Consequently, the PSA specified that "there shall be no direct child support payment obligation as to either party." Paragraph five stated, however, that the parties would share equally all "necessary and reasonable... activity fees" of the children, including gifts for graduation and birthday parties, as well as the costs of class trips, tutoring and athletic activities.

In paragraph sixteen, the parties agreed upon a distribution of thirty items of jewelry, most of which were to be retained by plaintiff, in return for her agreement to pay defendant the sum of $16,200 as his equitable share of the difference in the value of the jewelry being retained by each party. As to the parties' antiques, paragraph eighteen specified that some were to be retained by each party, and others would be sold with the proceeds divided equally.

The PSA also contains provisions addressing distribution of the cash surrender value of a life insurance policy, retirement assets and investment accounts. In particular, paragraph nineteen obligates plaintiff to pay defendant the sum of $50,000 as his equitable interest in two life insurance policies. Paragraph twenty-one, after providing that each party would retain the retirement assets titled in his or her name, specifies that plaintiff was obligated to transfer $78,000 of retirement assets to defendant within sixty days to equalize the value of the retirement assets that were acquired during the marriage. The next paragraph addresses a retirement account known as the H&R Block Target Benefit Account, and specifies that plaintiff would retain a 52.8 percent interest, defendant would retain the balance, and a Qualified Domestic Relations Order (QDRO) would be executed to accomplish such distribution.

On September 25, 2007, defendant filed the motion for enforcement of litigant's rights that is the subject of this appeal. In relevant part,*fn2 defendant sought to compel plaintiff to: sign all documents necessary to accomplish the equitable distribution of the parties' investment accounts and retirement funds as specified in the PSA; pay him his one-half interest in the H&R Block Target Investment Account;*fn3 pay him his equitable share of the life insurance policies; and produce and turn over the jewelry and antiques specified in an order entered on December 19, 2006 enforcing litigant's rights.

Defendant also moved for an order designating him as the parent of primary residence for the parties' son; requiring plaintiff to provide updated financial information for the purpose of calculating her child support obligation for the son's support; directing plaintiff to reimburse him for her one-half share of the children's "activity fees"; and reimbursing him for one-half of their late daughter's medical bills and funeral expenses.

Plaintiff cross-moved, seeking an order requiring defendant to execute all documents necessary for the transfer of retirement assets and Individual Retirement Accounts; and to pay her $13,484 as his one-half share of the "children's expenses." She also moved for the appointment of an attorney as administrator of their late daughter's estate.

In response to those motions, Judge Slomienski required the parties to submit updated financial information so that child support obligations could be determined. Ultimately, the judge conducted hearings on December 19, 2007, February 27, 2008 and April 29, 2008. Although neither party testified at any of the three hearings, the proceedings were lengthy, covering a total of 200 transcript pages. During those hearings, the judge questioned the parties and their lawyers*fn4 ...

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