When parties settle their cases, many if not most, expect that their agreement that they spent months or years negotiation will finally provide them with some peace.  After all, if someone agrees to do something in an Agreement that ultimately has the effect of a court order once it is incorporated into a Judgment of Divorce, it isn’t unreasonable to expect that you will both do what is required of you and will also get the benefit of the bargain.  More often than one would hope, an obligor simply doesn’t make payments.  Sometimes it is because of job loss or business reversal, and some times they just don’t want to.  They got what they wanted from the agreement, but just don’t want to pay.  This often leads to a parade of post-judgment enforcement motion after enforcement motion.  Very often, the motion is met with a cross motion containing one red-herring or distraction after another to make it appear as if both parties are not complying, as that would obviate the requirement of compliance.

What can a court do when a party simply fails to make their payments under the agreement?  Well, in W.S.H. v. V.L.P., an unreported  (non-precedential) decision released on February 16, 2022 the trial court had enough and ordered that the beach house that the defendant received in equitable distribution be sold to pay the arrears.  The facts of the case are pretty straight forward.  The parties divorced in 2017.  Defendant was supposed to pay plaintiff $5,000 per month in alimony for 5 years.  She was also required to pay $400,000 in equitable distribution  in payments of $33,333.33 on September 1, 2016, 2017, and 2018, with the remaining $300,000 to be paid in monthly installments over a 9.4-year period beginning in 2021.

Soon after the divorce judgment, she fell into arrears and there were successful enforcement motions in 2017 and 2019.  The 2019 Order resulted in this appeal, however, the Order was never stayed and thus defendant was still required to comply.  She didn’t and by the time the next enforcement motion was filed in January 2020, her alimony arrears totaled more than $86,000 and she had not made a $33,000 equitable distribution payment. Plaintiff sought the sale of the shore home to satisfy the arrears which the court granted.  The trial court further noted that because defendant had three homes, the sale of this home would not leave the her and the children without a residence, although I am not sure that that should matter under the law.

Not surprisingly, the Appellate Division affirmed the trial court’s order.  The Court quickly swept away defendant’s first argument, which was that the trial court did not have jurisdiction to hear the 2020 motion because of the pending appeal.  The argument lacked merit because the Court Rules specifically provide that while a trial court is otherwise divested of jurisdiction, this doesn’t apply to enforcement.  In fact, Rule 2:9-1(a).   states, “The trial court, however, shall have continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10” while those orders are on appeal.

The Appellate Division also rejected the argument that the compelled sale of the beach house went beyond the scope of enforcement by changing the terms of the equitable distribution ordered in the judgment of divorce, noting:

The equitable distribution agreed to by the parties and ordered by the court included both V.L.P. retaining sole ownership of the North Wildwood property and V.L.P. paying W.S.H. $400,000 in installments over several years. V.L.P. obtained ownership of the house, but she failed to fulfill her obligation to make payments to W.S.H. The March 20, 2020 and July 24, 2020 orders
enforce V.L.P.’s equitable distribution cash payment obligations; they do not change the equitable distribution of property among the parties. The court did not order the North Wildwood house be transferred to W.S.H. It instead ordered the liquidation of one of V.L.P.’s assets to satisfy her equitable distribution and alimony arrearages.  …..

The Family Part “possesses broad equitable powers to accomplish substantial justice” and may tailor an appropriate remedy for violation of its orders. Finger v. Zenn, 335 N.J. Super. 438, 447 (App. Div. 2000).

Citing to the Randazzo case, which addresses the sale of a home during the pendency of a case, the Court noted:

While Randazzo involved the sale of real property prior to the final judgment of divorce, V.L.P. makes no convincing argument why the court’s ability to fashion appropriate relief in a divorce proceeding should be any less expansive where a party persists, post judgment, in refusing to comply with court orders establishing her equitable distribution
and alimony obligations.

As a result, the court held:

In the face of V.L.P.’s flagrant refusal to comply with court orders directing her to make equitable distribution and alimony payments, the court’s directive to sell the North Wildwood property was an appropriate exercise of its discretion. So too was the appointment of an attorney-in-fact to effectuate the sale of the property, given V.L.P.’s well-established recalcitrance to follow court orders.

In other states, when someone fails to comply, courts actually hold contempt proceedings and can put people in jail.  While arguably possible in New Jersey, that rarely, if ever happens.  But there has to be a remedy for continued failure to comply.  There is a saying I have heard in the last few years that goes something lime “mess around and find out” (though the actual word in the saying isn’t “mess.”  In this case, the defendant found out that repeated violations of the Orders ultimately had serious consequences.


Eric S. Solotoff, Partner, Fox Rothschild LLP
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 is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.
Tags: collection of judgments, Court of equity, Enforce