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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 extensively about the relief each party sought, and afforded them ample opportunity to explain their respective positions.

At the time of the motion hearings, both parties were sixty years of age, and both were medical professionals. Although plaintiff was still working, defendant claimed that he had "retired" from his chiropractic practice because all of his available time was consumed with caring for his son, writing motion papers, and attempting to sort out the various legal problems resulting from the death of the parties' daughter. Defendant also claimed that whatever time remained in his day was spent in bed because he was too upset to "get out of bed in the morning."

On the issue of child support for the parties' son, the judge agreed that because defendant had become the parent of primary residence, plaintiff was obligated to provide child support. The judge accepted plaintiff's claim that her net income was $78,500 per year. The judge imputed income of $80,000 per year to defendant after finding that defendant's reasons for not working and not earning an income were unacceptable for a man of his age and health. In selecting the figure of $80,000, the judge relied upon New Jersey Department of Labor (NJDOL) statistics. After taking into consideration plaintiff's annual net income of $78,500, and the $80,000 imputed to defendant, the judge ordered plaintiff to pay defendant $178 per week in child support.

The judge considered the parties' requests for distribution of retirement funds and brokerage accounts, but denied both parties' requests without prejudice. The judge concluded that neither party had submitted sufficient documentary evidence to demonstrate that the opposing party was in violation of the applicable provisions of the PSA. Because he had already denied without prejudice defendant's motion for enforcement of sections of the PSA concerning the retirement and investment accounts, the judge likewise denied without prejudice defendant's motion for the appointment of an attorney-in-fact to sign all necessary documents on plaintiff's behalf.

As to the parties' request for reimbursement of the children's expenses and "activity fees," the judge stated that the submissions by both sides were "completely convoluted" and "don't make any sense." The judge commented that he was unable to make "heads or tails of what is going on here." The judge also expressed frustration about being provided with a bank statement showing a withdrawal, without any proof demonstrating that the withdrawal was for the purpose of paying the children's expenses. After querying "what am I supposed to do with this stuff?" the judge denied without prejudice both parties' request for reimbursement of funds expended on behalf of the children.

The judge also denied defendant's request for an order requiring plaintiff to reimburse him for the medical expenses and funeral bills arising from the parties' daughter's death, reasoning that the pending wrongful death action would result in a comprehensive resolution of those financial issues. For the same reason, he declined to appoint an administrator of the daughter's estate.

On appeal, defendant argues the trial court erred by: 1) failing to conduct a plenary hearing on equitable distribution of the retirement funds, life insurance policies and brokerage accounts; 2) imputing income to him when setting the amount of plaintiff's child support obligation; 3) refusing to order transfer of jewelry from plaintiff to defendant; 4) refusing to order the sale of the antiques that were specified in the PSA; 5) failing to conduct a plenary hearing on defendant's request for reimbursement of his daughter's medical and funeral expenses; 6) failing to conduct a plenary hearing on his request for retroactive reimbursement of expenses for the children; and 7) refusing to appoint an attorney-in-fact to execute documents to enforce the terms of prior court orders and the PSA concerning distribution of retirement and brokerage accounts.


Before analyzing the substance of the defendant's claims, we pause to address his contention that the judge erred by not conducting a plenary hearing on the issues of equitable distribution of the parties' brokerage accounts and jewelry, and on defendant's request for retroactive reimbursement of child care expenses and medical and funeral expenses for the parties' daughter. First, we note that not once during any of the three motion hearings did defendant assert that a plenary hearing was necessary. Defendant willingly participated in the three lengthy hearings during which the judge addressed the claims made in the motion and cross-motion. We cannot fault the judge for not conducting a hearing when defendant never requested that the judge do so.

We turn to defendant's first point, in which he complains that he was wrongly denied distribution of the retirement funds, life insurance policies and brokerage accounts. As we have already observed, the judge did not deny these requests outright, but instead denied them without prejudice, thereby affording defendant the right to present his proofs in a fashion that would permit a dispositive determination of defendant's claims. Denial of a motion without prejudice is not a final order, and is therefore not reviewable on appeal. Christiansen v. Christiansen, 46 N.J. Super. 101, 109 (App. Div. 1957). We thus decline to consider defendant's claims respecting the denial of his motion for equitable distribution of those accounts, as well as for equitable distribution of the jewelry and antiques. All of those requests were denied without prejudice, and are therefore not reviewable. Ibid. The same is true of the judge's treatment of defendant's request for the appointment of an attorney-in-fact.

We turn next to defendant's second point, in which he asserts that the judge erred by imputing to him $80,000 of annual income. Our scope of review of a Family Part judge's findings of fact is limited indeed. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). 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. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence....'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

Moreover, we review a judge's decision on the calculation of child support for an abuse of discretion in light "of the broad equitable powers of the Family Part to accomplish substantial justice." Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). When a party appeals a judge's decision to impute income, we will not disturb the result unless "the underlying findings are inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004).

With these principles in mind, we turn to a review of Judge Slomienski's determination that $80,000 per year should be imputed to defendant as income. Whenever a parent remains unemployed or underemployed without just cause, income should be imputed, to "promote a fair and just allocation of the child support responsibility of the parents." Caplan v. Caplan, 182 N.J. 250, 268 (2005). As the Court observed in Caplan, "'[t]he potential earning capacity of an individual, not his or her actual income, should be considered when determining the amount a supporting party must pay.'" Ibid. (quoting Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999)). See also Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992) (observing that merely because a court will not order a parent to work does not mean that the judge lacks the power to impute income to that parent).

In deciding whether to impute income, the trial judge must first determine whether the parent has "just cause to be voluntarily unemployed." Caplan, supra, 182 N.J. at 268. In making that decision, the judge should consider the employment status and earning capacity of that parent had the family remained intact, as well as the reasons for and intent behind the voluntary underemployment or unemployment. Ibid.

Here, in light of defendant's failure to present any evidence to support his claim that he was physically and psychologically unable to work, we reject defendant's argument that Judge Slomienski abused his discretion when he rejected such a claim. Moreover, while we are not unsympathetic to the natural grief a parent would experience upon the loss of a daughter who had not yet attained adulthood, in the absence of expert opinion demonstrating that defendant's resulting grief was so profound as to render him unable to work, the judge rightfully rejected that contention. The judge likewise properly refused to accept defendant's contention that caring for his then seventeen year-old son consumed so much of his time and energy as to make it impossible for him to remain employed as a chiropractor. We have been presented with no meritorious basis upon which to conclude that the judge mistakenly exercised the broad discretion entrusted in him when he imputed income to defendant.

Defendant also contends that the judge's methodology for determining the precise amount of income to be imputed was flawed. He maintains that the judge should not have relied exclusively on the NJDOL statistics. This argument is meritless. The judge adhered to the very procedure established in the Rules of Court for determining the amount of income to be imputed once a court decides that a party does not have good cause for being unemployed. Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2392-93 (2010) (Guidelines). The Guidelines specifically provide that if a court "finds that either parent is, without just cause, voluntarily underemployed or unemployed," the judge should impute income to that parent by using one of three methods, in descending order of priority:

a. impute income based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);

b. if potential earnings cannot be determined, impute based on the parent's most recent wage or benefit record....; or

c. if a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the New Jersey minimum wage ($7.15 per hour). [Ibid. (emphasis added).]

We thus reject defendant's claims respecting the judge's methodology for selecting the precise sum of $80,000 as the amount of income to be imputed.

Last, in light of the pending wrongful death action, the judge did not abuse his discretion in denying defendant's motion for reimbursement of the medical and funeral expenses for the parties' daughter. In the event the estate makes a recovery, we trust that defendant will be reimbursed for his portion of those expenditures.


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