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Baldinger v. Baldinger

Superior Court of New Jersey, Appellate Division

December 24, 2013

BETH G. BALDINGER, Plaintiff-Appellant,
v.
BRUCE E. BALDINGER, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 7, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-669-04.

Beth G. Baldinger, appellant pro se.

Bruce E. Baldinger, respondent pro se.

Before Judges St. John and Leone.

PER CURIAM

Plaintiff Beth G. Baldinger and defendant Bruce E. Baldinger entered into a Supplemental and Amended Dual Final Judgment of Divorce (JOD). Plaintiff appeals from the denial of reconsideration of an order requiring her to comply with the JOD's personal property provision. We affirm.

I.

The parties were before us in an earlier appeal, which in some respects is a mirror image of this appeal. In Baldinger v. Baldinger, Docket No. A-1733-09 (App. Div. July 7, 2011) (slip op. at 2-5), we recounted pertinent facts and procedural history:

The parties, both attorneys, resolved their acrimonious divorce on June 28, 2006, although their relationship remained conflicted. Pursuant to the JOD, defendant agreed to surrender all rights to the marital home. Plaintiff agreed to "execute a home equity loan or refinance the first mortgage adding Seventy Thousand Dollars ($70, 000.00) . . . for [defendant's] attorney's fees." In turn, defendant agreed to repay that sum to plaintiff in quarterly installments with interest commencing on November 1, 2006, with the last payment due on August 1, 2007. Defendant never complied with this financial obligation.
The JOD also provided that plaintiff would keep all personal property except for "the Tibetan chest, the Erte pin, the Japanese screen, books, some photos, one-half of the crystal and half of the artwork." If the parties could not agree how to divide the artwork, defendant was to prepare two lists of all of the artwork and plaintiff was to choose one of the lists. Plaintiff would then retain the artwork on that list, and the artwork on the other list would be given to defendant. Plaintiff in large measure never complied with this provision.
The JOD further provided that "[a] modification or waiver of any provision of this [JOD] shall be effective only if made in writing, and executed with the same formality as this [JOD]." The JOD did not make defendant's obligation to repay the $70, 000 loan contingent upon plaintiff's performance of her obligation to give defendant the specified personal property.
Each party's failure to comply with the JOD became the subject, in part, of a 2009 post-judgment cross-motion by plaintiff after defendant sought a change in custody. Plaintiff opposed the change in custody and alleged in her cross-motion that defendant owed her $70, 000, which should have been repaid in full by August 1, 2007. She sought an order holding him in violation of litigant's rights and ordering him to make payment in full by a date certain.
In his certification opposing this relief, defendant alleged that he sought return of the personal property he was entitled to receive, although he did not certify that he had provided plaintiff with two lists of the artwork. He averred that plaintiff had refused to provide the personal property to him and "maliciously joked with the children that she might give them to me one day when she tired of them." He further averred that when he questioned her about why she would want to keep his parents' photograph books, his matchbook collection, and all of their children's photographs, she "would laugh at [him] and say that [he] would never see [his] property." Because plaintiff delayed so long in returning the items, defendant certified that he "purchase[d] art and other items at great expense." It was not until plaintiff sold the marital home that she returned some, but not all, property to him, but some of the returned items had been damaged so severely that they no longer had any monetary value. He related that he told plaintiff that he considered her failure to return his valuable personal property as relieving him of his obligation to repay the $70, 000 loan. He pointed out that plaintiff had not sought to enforce her rights under the JOD for over three years.
On April 4, [2008, ] plaintiff emailed defendant to say that she was moving and his property was available for him to retrieve. In response, defendant demanded that plaintiff deliver his property to him and leave it in the left bay of his garage. He stated, "I have no intention of waiving your breach by taking anything from you." Plaintiff apparently complied with this demand, but the acrimony over the personal property continued in the parties' email correspondence.
Despite providing this correspondence to the judge, defendant never amended his notice of motion to seek any affirmative relief regarding plaintiff's alleged default. In plaintiff's reply certification on her cross-motion, she did not dispute any of defendant's claims except those related to three paintings by Gregorio Prestopino. As to these, she certified that they had been purchased for each of their three children and had been given to ...

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