Posted on February 9, 2009 by Eric S. Solotoff

SHE SNOOZED, SHE LOST

Usually, the "you snooze, you lose" defense is not often a successful legal tactic.  However, in the recent unreported Appellate Division decision in Adler v. Adler the former wife's application seeking unpaid child support, alimony and other obligations brought some 30 years later was denied essentially because she waited to long to collect.  To read the full text of the decision, click here. 

Pursuant to the Judgment of Divorce entered in 1973, the ex husband was required to pay $235 per week as undifferentiated child support and alimony until the oldest child was emancipated, at
which time the weekly support was to be reduced by $50 per week.  That same $50 reduction was to occur when each of the two younger children became emancipated. The JOD also obligated
defendant to pay: the mortgage, taxes, insurance and utilities on the marital home; all reasonable and necessary medical expenses for the children; health insurance premiums for ex-wife and the children; $3,500 to the ex-wife on or before August 15, 1973; $6,231.85 for various unpaid bills arising during the marriage; college tuition for the parties' three children; and orthodontic treatment for the parties' two sons.  Other than an enforcement Order from November 1973, there were no other Orders in the case.  In addition, in 1975, the Probation Department closed their account, though arrears existed at that time, due to direct payments being made.

Between 1975 and 1978, the ex-husband stopped making payments.  There was an enforcement motion filed in Maine in April 1978 and another Order entered later that year in Delaware County, New York that held the husband in contempt. Another enforcement motion was filed in late 1979 but their appears to be no further enforcement efforts taken thereafter.

That is, until April 2007 when the ex wife filed an application under the Uniform Interstate Family Support Act in Massachusetts.  Massachusetts determined it had no jurisdiction over the ex-husband.  Thereafter, the motion that is the subject of the current appeal was filed in NJ.  In her motion, the ex-wife requested the entry of a judgment against defendant in the amount of
$971,280, which she alleged consisted of: $466,962 in support arrears, interest of $18,768 at four percent per annum, and a doubling of that amount as a penalty.

The trial court denied the motion based upon a legal doctrine called laches which essentially is that for no good reason, the ex-wife failed to act in time.  The trial court was willing to entertain enforcement of the arrears in existence when the  Probation Account was closed if it was reduced to Judgment.

The Appellate Division affirmed.  The Appellate Division also noted that even if arrears were reduced to judgment, the statute requires a judgment to be enforced within 20 years.  In addition, the Court held:

At the time plaintiff filed her enforcement action before the Family Part, he was seventy-three years old and in poor health, suffering from heart problems and
diabetes. Moreover, except for a brief three-year period when defendant was suspended from the practice of law, plaintiff had the ability to ascertain defendant's address from the applicable authority in New York that licenses attorneys. The record is devoid of evidence demonstrating that plaintiff made any effort until 2007 to contact licensing authorities in New York to inquire about defendant's home address or the location of his office. Finally, the record demonstrates that the parties' son, James, maintained cordial relations with both of his parents,
yet plaintiff made no effort through her son to learn defendant's whereabouts.

In short, the ex-wife snoozed on her rights and lost.

 

I have had two cases like this in my career.  In one, the disabled daughter sought payment of support arrears due her.  That case was resolved favorably for many of the same reasons as above, plus, in that case, the daughter was receiving Social Security Disability Insurance benefits which essentially offset the support that my client should have been paying, if he did, in fact, have an obligation.

In another case, the parties were divorced in the early 1970s.  The husband, my client, asserted that the wife came to him asking him to allow her to move out of state with the children (apparently something that was much harder for her to do in those times) where she would be remarried and her new husband was to adopt the children.  In exchange for his consent, she agreed to forego any child support.  This agreement was supposedly in writing.  Fast forward to the early 2000s where the wife saw a TV news show featuring a collection agency that specialized in collecting child support.  She hired them to go after my client who now lived in Texas.  After learning that Texas law would not allow equitable defenses such as laches, we filed a pre-emptive motion to determine that there were no arrears in NJ.  At oral argument, the trial judge was skeptical that the plaintiff had any claim at all.  However, since there were factual issues as to whether she knew where my client was, the Court ordered a hearing.  The case was resolved shortly thereafter with a small nuisance value payment as opposed to the hundreds of thousands of dollars that was sought. 
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Posted on December 15, 2008 by Robert A. Epstein

Wife's Delay in Seeking Child Support Arrears Does Not Act to Waive Claim

 In an interesting opinion from the Appellate Division, Faro v. Randel R. Vonder Heyden, III, found here, the Appellate Division reversed a trial court's denial of a plaintiff ex-wife's post-judgment Order denying her motion to enforce litigant's rights due to the ex-husband's failure to pay child support over a period of several years.  The Appellate Division found that the wife's delay of several years in seeking payment did not warrant application of the equitable doctrine of laches and that the wife could not waive the claim to the monies, as that right belonged to the children of the marriage.

Two children were born of the marriage and the parties were ultimately divorced in 1992.  The final judgment of divorce granted the wife primary residential custody of the children and the husband was required to pay $90 in weekly child support; $20 in weekly health insurance; 50% of the unreimbursed medical expenses incurred on the children's behalf; and to provide $100,000 in life insurance for the children's benefit.  The husband, however, failed to pay the weekly medical and dental insurance, failed to pay his 50% share of one child's orthodontic expenses, and never provided proof that he obtained life insurance.  The wife a motion to compel payment that was denied without prejudice.

The wife did not thereafter seek enforcement of litigant's rights until 2007 in response to the husband's motion to emancipate one of the party's children.  She sought more than $19,000 in accumulated health insurance contributions, as well as proof of life insurance for the benefit of the party's other child.  Neither party contested the other party's application.

Without a hearing, the trial court found the child emancipated and ordered the husband to provide proofs regarding the life insurance.  However, the wife's request for $19,000 was denied due to her delay in seeking same and the Court seemingly left the husband with a slap on the wrist for his delinquencies.  The wife's subsequent motion for reconsideration was also denied under the doctrine of laches. 

Disagreeing with the Court application of the laches doctrine to bar the wife's claim, the Appellate Division noted that the husband did not deny the amounts that the wife claimed he owed, his position never changed, and he was not prejudiced by the delay in the wife's application, as he continued in his failures to pay.  The Appellate Division found neither doctrine applicable even if properly raised as the husband continued in his failures to pay and the claim to the monies owed was not waived due to the wife's delay, as the right to receive the payments actually belonged to the children, rather than her.  Finally, the Appellate Division applied an "unclean hands" concept, noting that the inequity caused by the husband's own failure to pay over time did not entitle him to benefit from the equitable laches concept.

The Appellate Division was protecting the rights of the children despite the wife's delays, not allowing the husband to get away with his complete failure to pay for their medical insurance and then seeking the emancipation of one of the children in the process. 

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Posted on March 18, 2008 by Sandra C. Fava

Obligation to maintain life insurance

Tasara Masaya v. Peter Griffin and Deirdre Newman

This case is an appeal from a final order of the Family Part. Peter Griffin was married to Deirdre Newman in 1985. They had two children. In 2000 Griffin and Newman divorced. The parties’ Property Settlement Agreement required that the two children remain the beneficiaries of Griffin’s $150,000 policy and his employer life insurance policy until their emancipation.  In 2004, Griffin had another child with Tasara Masaya. In 2005, Masaya filed a complaint for custody and child support.  The Court entered a Consent Order that provided Masaya with child support, arrears, child costs, and required Griffin to obtain life insurance of $200,000 to secure his child support obligation. In 2006, Masaya sought to enforce the Order regarding the arrears and the life insurance. Although Griffin was in the hospital at the time, the judge without knowledge of the PSA, awarded Masaya’s child 85% of the life insurance. 

Following Griffin’s death, an order to show cause was filed regarding the life insurance. The order to show cause informed the Court of the PSA, and the judge modified her previous Order. Masaya appealed. The appellate division cited Della Terza v. Estate of Della Terza, 276 N.J. Super. 46 (App. Div. 1994), when rendering its decision that “[w]hen incorporated in an agreement or court order, the parent’s obligation to provide such insurance for the benefit of his or her child gives the child an equitable interest in the proceeds of a policy of insurance on that parent’s life, regardless of the beneficiary designation in effect at the time or his or her death”.    

When a child of a deceased parent has an equitable interest in the proceeds of a life insurance policy, i.e. they are the beneficiary, because the deceased parent has an obligation to provide such insurance, that interest is enforceable as an equitable assignment. Taking it one step further, when a parent has other children born after the order establishing the obligation to maintain life insurance for the child of the marriage, the prior obligation is enforceable regardless of a subsequent redesignation of beneficiaries. In essence, the first in time still has an enforceable right under the terms of the Property Settlement Agreement and a subsequent child and subsequent obligation, does not nullify that obligation. 

Clients must be aware that if their Property Settlement Agreement obligates them to maintain a life insurance policy for the benefit of their child from the first marriage, oftentimes to secure a child support obligation, a subsequent remarriage and additional children born to that party do not trump their obligation to maintain satisfactory life insurance pursuant to the terms of their Agreement. 
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Posted on March 3, 2008 by Eric S. Solotoff

Even Under Tragic Circumstances - Fault Once Again Rejected As Factor in Alimony

In late 2007, in Calbi v. Calbi, 396 N.J. Super. 592 (App. Div. 2007),  the Appellate Division once again re-affirmed the notion that marital fault is all but irrelevant when assessing a party's right to receive alimony. 

In what was as tragic a case as any parent could imagine, Mr. Calbi sought to terminate or reduce his alimony after one of the party's two children died at the hands of the mother.  Specifically, while intoxicated, during an altercation, Mrs. Calbi kicked her son three times in the head and once in the neck.  He died as a result of the injuries he sustained.  Ultimately, Mrs. Calbi plead guilty to second degree aggravated assault for which she was to be imprisoned for approximately 3 years.  As a result of the grief and trauma associated with the loss of his son as well as the added responsibilities for caring for the parties' other son, Mr. Calbi fell behind on his alimony.  In light of all of the circumstances, he sought the reduction if not elimination of alimony. 

The trial judge ultimately that any application to terminate alimony should await Mrs. Calbi's release from prison.  However, the current support was suspended, but the prior arrears were not vacated and Mr. Calbi was ordered to pay them. 

The Appellate Division reversed holding that suspension of Mr. Calbi's alimony payments and vacation of the alimony arrears that accrued after death of parties' child was required.  Moreover, upon Mrs. Calbi's release from prison, Mr. Calbi was entitled to a hearing  to determine whether the child's death affected his ability to pay alimony. 

That said, the Court went back and reviewed the cases regarding fault, including the 2005 case of Mani wherein Justice Long held that marital fault was irrelevant to alimony except in two narrow instances: cases in which fault has affected the economic life of the parties, and “cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.”   Justice Long spoke of   “egregious fault,” which she defined as acts by their very nature, are different in kind, such as a spouse attempting to murder the other spouse; a spouse who as deliberately infected the other with a loathsome disease.  Justice Long went on to say,  "Underlying these examples is the concept that some conduct, by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties. In the extremely narrow class of cases in which such conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all." 

Since Mrs. Calbi's actions were not deemed to be intentional, either in the criminal court or the family court, she was not precluded from receiving alimony no matter how contemptible or aberrant her conduct was. 

That said, if this conduct will not terminate alimony, then there is little by way of fault that would do so. 

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