AMY B. ADLER v. CYRUS B. ADLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3528-07T23528-07T2

AMY B. ADLER,

Plaintiff-Appellant,

v.

CYRUS B. ADLER,

Defendant-Respondent.

________________________________________________________________

 
 

Submitted January 22, 2009 - Decided

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FM-02-10268-72.

Amy B. Adler, appellant pro se.

Benenson & Scher, P.A., attorney for respondent (Jay R. Benenson, of counsel and on the brief).

PER CURIAM

This appeal requires us to decide whether the trial judge correctly determined that plaintiff Amy Adler's motion to collect from defendant Cyrus Adler unpaid alimony and child support and to enforce other financial obligations arising from the parties' August 8, 1973 Judgment of Divorce (JOD) was barred because plaintiff waited nearly thirty years to collect the amounts due. We conclude that the record amply supports the judge's findings of fact and conclusions of law. We affirm the February 15, 2008 order that denied plaintiff's motion to reconsider the earlier November 29, 2007 order that had denied plaintiff's motion to enforce litigant's rights.

I.

Pursuant to the JOD, defendant was required to pay plaintiff $235 per week as undifferentiated child support and alimony until the oldest child, a daughter, 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 plaintiff and the children; $3,500 to plaintiff 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.

The only order ever entered in New Jersey enforcing the provisions of the JOD was a November 15, 1973 order that obligated defendant to "pay all arrearages for maintenance and support presently outstanding pursuant to the final judgment for divorce dated August 3, 1973, by paying the amount of $810 to the Bergen County Probation Department." The November 15, 1973 order also directed defendant to provide proof that he purchased the life and health insurance that were required by the JOD. Finally, the November 15, 1973 order directed defendant to supply plaintiff with an itemized list of the bills that he paid to satisfy the $6,231.85 owed to various creditors. The order specified that if defendant failed to comply with the terms of the order "by the date set out above," a warrant would issue for his arrest.

On June 10, 1975, the Bergen County Probation Department wrote to plaintiff advising her that defendant had paid a total of $7,830 in support and alimony in 1973 and that the arrears were $9,090 as of June 9, 1975. In that letter, probation advised her that it was closing its account "due to the direct payments" that were apparently being made at that time by defendant. Plaintiff took no action in response to the Probation Department's letter.

Although the record does not specify the exact date, it is clear that at some point between 1975 and 1978, defendant ceased paying the required child support and alimony. Consequently, in April 1978, plaintiff filed an enforcement motion in Maine that resulted in an April 28, 1978 order obligating defendant to pay plaintiff the sum of $150 per month in alimony and child support. An order entered a few months later in Delaware County, New York held defendant in contempt of court for failing to make support payments. The New York order authorized the issuance of an arrest warrant and directed that defendant "be held in confinement until the total amount of arrearage . . . has been paid." The record contains no evidence of a warrant ever issuing pursuant to that order. Plaintiff filed a second enforcement action in Maine that resulted in an undated order obligating defendant to pay $75 per month commencing November 1979.

Plaintiff made no further effort to collect the amounts due her until twenty-eight years later when she filed an action in the Commonwealth of Massachusetts in April 2007 under the Massachusetts Uniform Interstate Family Support Act. On May 15, 2007, the Massachusetts court dismissed plaintiff's complaint due to lack of in personam jurisdiction over defendant who then resided in New York and had no contacts with the Commonwealth of Massachusetts that would subject him to its jurisdiction.

The record also reveals that defendant was admitted to the Bar of New York in 1959 and, with the exception of a three-year period between 1981 and 1984 when he was suspended, defendant has remained a licensed attorney in that state.

During the fall of 2007, plaintiff filed the motion that is the subject of this appeal. In her motion, plaintiff 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.

At the motion hearing on November 16, 2007, Judge Ustas denied plaintiff's motion for enforcement of litigant's rights because of the twenty-eight year delay by plaintiff in seeking enforcement of her rights:

Based upon [plaintiff's] failure . . . in New Jersey since at least 1975 to pursue her rights, the doctrine of laches applies. Twenty-eight years have elapsed during which time [plaintiff] did not pursue her rights properly. She might have made applications in . . . Maine and Massachusetts, but that doesn't give [this court] sufficient reason to believe that she was intent on pursuing her rights in New Jersey where the matter should have been enforced since . . . this is where [the JOD] was entered.

. . . [L]aches is a failure to assert a right within a reasonable time resulting in prejudice to the opposing side. The key factors are the length of delay, reasons for the delay, [and] change of position by either party during the delay. . . . [Defendant] did not hide from [plaintiff]. In fact, [the] children were in communication [with him.]

. . . .

[Plaintiff] didn't do anything at all from 1984 until this year. [The] legal history [submitted by plaintiff] . . . provides '84 and then [plaintiff] did nothing.

. . . .

. . . [Y]ou cannot come to court so many years--28 years later--actually the last appearance in New Jersey . . . was 1975.

. . . .

. . . I also find that . . . [t]here is not a welfare of the children component to this that would compel the court to maybe take a different view.

Thus, because plaintiff had waited so long to enforce her right to payment, the judge denied plaintiff's motion to enforce litigant's rights for all of the unpaid child support and other financial obligations defendant incurred in the 1973 JOD. However, the judge was willing to consider whether the $9,090 of support arrears documented by the probation department in 1975 had been reduced to judgment. If so, the judge commented, that amount "would be tantamount to a judgment entitled to collection." The judge explained that of the entire amount sought by plaintiff, the only portion that was potentially available for collection was any portion that been reduced to judgment by the Probation Department. Indeed, the confirming order entered on November 29, 2007, specifically provided that "plaintiff shall ascertain whether there is any arrears balance due and owing from the Probation Department."

On December 20, 2007, plaintiff filed a motion for reconsideration of the November 29, 2007 order. During the hearing on her motion for reconsideration, plaintiff argued that the court's November 29, 2007 order was unfair and improper because plaintiff had "continued over all these years to look for [defendant who] was hiding and dodging." The judge rejected that assertion, reasoning that plaintiff was "aware of [her] husband's address [when] [h]e . . . moved from New York to Maine, then to Woodstock. [Plaintiff] was aware of his address through [her] son." The judge denied plaintiff's motion for reconsideration, finding that plaintiff failed to establish an entitlement to reconsideration under Rule 4:49-2. Relying on Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 570 (App. Div. 2003) and L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002), the judge reiterated her earlier conclusion that "laches applies. It's way too late."

II.

Although we are obliged to defer to findings of fact made by judges of the Family Part, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we review the judge's legal conclusions de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, plaintiff raises the same claims she raised before the Family Part. For his part, defendant urges us to affirm the February 15, 2008 order denying reconsideration. He maintains the trial judge properly concluded that plaintiff's twenty-eight year delay in seeking enforcement was unjustified and bars her from seeking relief after having slept on her rights for so long.

Of the $466,962 of unpaid arrears that plaintiff claims defendant owes, the only amount that was ever reduced to judgment was the $810 referred to in the November 15, 1973 order of enforcement. However, even that $810 judgment cannot be enforced because a judgment must be enforced within twenty years. N.J.S.A. 2A:14-5. No judgment may be enforced after twenty years unless proper proceedings have been filed within the twenty-year period to enforce it. Ibid. Therefore, the twenty-year limitation period for bringing an action on the judgment expired in 1993. It cannot be extended. Cumberland County Welfare Bd. v. Roberts, 139 N.J. Super. 126 (Cty. Ct. 1976), aff'd o.b., 148 N.J. Super. 456 (App. Div. 1977). Thus, the motion plaintiff filed in 2007 was filed fourteen years too late. Consequently, the sum of $810 specified in the November 1973 order can no longer be enforced. Ibid.

The overwhelming majority of the $466,962 plaintiff sought to collect in her 2007 enforcement motion was never reduced to judgment. Consequently, we turn to an analysis of whether Judge Ustas properly concluded that plaintiff's twenty-eight year delay in collecting unpaid support arrears and other amounts accruing under the JOD barred her from seeking relief.

When a party fails to assert a known legal right within a reasonable time, thereby causing prejudice to the opposing party, the right to seek enforcement may be denied by invoking the doctrine of laches. Clarke, supra, 359 N.J. Super. at 570. In determining whether laches bars a party's ability to collect an unpaid debt, the "key factors" the judge should consider are "the length of delay, reasons for delay, and change of position by either party during the delay." Ibid.

In Clarke, we affirmed the trial judge's conclusion that the plaintiff's twenty-one year delay in seeking to collect unpaid child support and alimony was excused by the defendant's swearing his children to secrecy about his whereabouts and his leaving the country on several occasions to sail around the world. Id. at 570. The facts here are markedly different. In this case, the record demonstrates that in 1975, when defendant began to default on the obligations imposed by the JOD, he was forty-one years old. 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. Thus, the factors that caused us in Clarke to affirm the Family Part judge's conclusion that the twenty-one year delay there was excusable are entirely absent here.

While it is true that "laches does not arise from delay alone," L.V., supra, 347 N.J. Super. at 39, we conclude the "equitable balance" that clearly favored the defendant in L.V. is equally applicable here. Id. at 40. Applying the factors identified in Clarke and L.V., we share the judge's conclusion that the length of delay, twenty-eight years, is extraordinary. The reason asserted by plaintiff for that delay, namely defendant's "moving around and hiding," is unavailing in light of plaintiff's ability to find defendant by either asking her son or inquiring of the New York attorney licensing authority. Furthermore, the prejudice to defendant from that delay is substantial. To now force defendant to disgorge hundreds of thousands of dollars when he is substantially retired from the practice of law, seventy-three years of age and has assumed ever since 1978 that plaintiff would not pursue him for collection, would be both unwarranted and unfair. Thus, the factors we identified in Clarke and L.V. operate, as Judge Ustas properly found, to bar plaintiff from enforcing the provisions of the JOD. We therefore agree with her conclusion that plaintiff was "way too late" in pursuing her motion for enforcement of litigant's rights. Consequently, we affirm both the November 29, 2007 order that denied plaintiff's motion for enforcement of litigant's rights and the February 15, 2008 order denying reconsideration.

Affirmed.

The order, which was signed on November 15, 1973, ordered defendant to comply with its provisions no later than "Friday, November 9, 1973." The record does not clarify that chronological discrepancy.

Plaintiff's motion papers are undated and therefore the exact date that she filed her motion cannot be ascertained.

In her notice of appeal, plaintiff specifies that the $466,962 consisted of $178,210 in "unpaid alimony and child support [from] 1973 to 2008"; $288,752 in "unpaid mortgage, utilities, insurance, health insurance, medical bills, dental bills, life insurance (canceled), outstanding legal costs over [the] years, college tuitions, and creditors from other divorce costs."

In her findings, the judge mistakenly referred to the arrearage amount as $24,965. The actual probation department record demonstrates that the total due was $24,965, of which defendant paid $15,875, thereby leaving arrears of $9,090, not $24,965.

The twenty-eight years to which the judge referred applies to the twenty-eight years that elapsed between the filing of plaintiff's last motion in Maine in 1979 and the 2007 motion that is the subject of this appeal.

(continued)

(continued)

12

A-3528-07T2

 

February 6, 2009