Okay, now that I hooked you with a bad movie reference, lets talk about laches.  Laches has been defined in New Jersey family law as "… an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other parent, so that it would be inequitable to enforce the right."  Put simply, it is sitting on your rights and doing nothing about it for many years and when you do try to enforce your rights, the other party would be unduly prejudiced by the delay.

The issue recently came up in the case of Mayer v. Mayer, an unreported (non-precedential) decision released on January 25. 2013 involving a situation where the support payor overpaid child support for 7 years.  Though the overpayment was indisputable, the beneficiary of this overpayment fought repayment of it claiming laches and other equitable remedies as a defense.  The trial court did not address these defenses and simply ordered that the child support be reduced by $42 week to pay back this more than $35,000 overpayment and also entered judgment against the recipient.

Because the trial court failed to comment or even address these defenses, the Appellate Division reversed and remanded the matter for a plenary hearing (trial) on the defenses to the repayment of the overpayment. The Appellate Division noted the following facts which required consideration:

Plaintiff’s child support was always enforced through wage garnishment by probation. Although the motion record did not include any pay stubs for the period prior to the audit, it did include pay stubs received immediately prior to the filing of the motion. Those clearly reflected the amount withheld on account of child support. We think a reasonable inference could be drawn that plaintiff’s excess withholding over the years should have been obvious to him.

In his certification, plaintiff acknowledged making "protests" to probation as early as 2004. The record did not include any documentation of plaintiff’s efforts. However, it was apparently not until 2010, when he "was finally able to retain counsel to assist [him]," that he sought an audit.

Meanwhile, defendant certified that she alone paid for various unreimbursed expenses for the parties’ child over the years. She further claimed that "[t]he only reason [she] paid these expenses without seeking contribution [was] because [p]laintiff continued to pay the additional child support."

We express no particular opinion as to whether defendant should ultimately succeed on her equitable claims. We note that defendant was expressly notified by probation that she could be personally liable for overpayments made in error. But, based upon the certifications presented, we agree with defendant that a plenary hearing was required.

Moreover, because there was going to be some repayment if repayment was deemed appropriate after a plenary hearing, and it was likely that the repayment would not likely be concluded during the children’s minority, nevertheless, the Appellate Division questioned whether a judgment for the full amount was equitable under all the circumstances presented.

What is the takeaway from this case – if you are overpaying support, act immediately.  If you are receiving more support than was agreed upon or ordered, beware that you may have to pay it back in the future, with interest (because judgments carry interest).


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.