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.
