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. 

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

Tricia Apy, Esq. NJ Family Law practition is presently representing her brother, (McHale vs. McHale, NJ Monmouth County) against her niece for child support and child support arrears; the case after six long years (see McHale v. McHale Appellate Court AZ)has finally been domesticated in NJ, the state of domicle of the non-custodial parent. Economic Mediation is scheduled next week for child support arrears including child care, medical, dental etc. Ms. Apy is actively representing David Gooman (see Dateline, January 30 + Oprah Show) in a case that has gotten grand recognition for it’s legal issues. While it is my understanding there is no legal conflict with representating your brother against your niece for child support, I wonder what moral or ethical issues this may conflict with the New Jersey Bar Association AND what position if any the Bar may have concerning this conduct ~ given her high notoriety on champion children’s rights. Do I as the custodial parent have the right to bring it up to the New Jersey Bar Association? How would I approach that? Allegedly, Ms.Apy is reprsenting her brother against her niece ProBono while I have had to expend monies for legal representation in AZ and now NJ these past six years? Is that also a violation of NJ Bar association ethics and compliance rules or regulations relative to these circunmstances. Appreciate your response. Thank you.

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