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DOCKET NO. A-2390-07T32390-07T3







Argued November 13, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County, Docket No. FM-15-480-92S.

Joel A. Davies argued the cause for appellant (Taff &

Davies, attorneys; Mr. Davies, of counsel and on the


Randel R. Vonder Heyden, III, respondent, argued the cause pro se.


Plaintiff Elizabeth Faro appeals from a post-judgment order of the Family Part denying her motion to enforce litigant's rights and compel defendant Randel Vonderheyden, III, to pay his child support obligations. Her appeal is unopposed. For the following reasons, we reverse and remand.

The parties had two children born during the marriage, Rachel, June 30, 1983, and Renee, April 7, 1987. The parties were divorced by final judgment of April 30, 1992, which granted plaintiff primary residential custody of the children and directed defendant to pay $90 weekly in child support; $20 weekly for health insurance; one-half of the unreimbursed medical expenses incurred on behalf of the children; and to provide life insurance in the amount of $100,000 for their benefit.

According to plaintiff, defendant never paid the weekly amount for the children's medical and dental insurance or his one-half share of Rachel's orthodontic expenses incurred from 1997-2000, totaling $2,881.49. Neither did he provide proof of life insurance. Defendant's non-compliance prompted an earlier motion by plaintiff to compel such payment as well as child support arrears. While the court recognized such obligations and supposedly increased defendant's weekly $20 contribution to $30, its September 7, 2001 order apparently denied plaintiff's motion without prejudice and ordered defendant to submit a current case information statement (CIS) within thirty days, which defendant failed to do, despite defendant's continuing non-compliance.

Thereafter, plaintiff did not seek enforcement of litigant's rights until September 2007 when, in response to defendant's motion to emancipate Rachel, who married on August 18, 2007, plaintiff cross-moved to compel defendant to pay over $19,000 in accumulated health insurance contributions ($9720 from April 30, 1992 to September 7, 2001; and $9360 from September 7, 2001 to present) and one-half ($1,440.74) of Rachel's orthodontic expenses. Plaintiff also sought proof of life insurance in the reduced amount of $50,000 for their daughter Renee. Plaintiff did not contest defendant's emancipation motion and defendant neither responded to nor opposed plaintiff's cross-motion.

Without benefit of a hearing, the motion judge declared Rachel emancipated and ordered defendant to provide proof of $50,000 worth of life insurance for Renee's benefit. Despite the lack of any opposition, the judge denied all other relief sought by plaintiff, reasoning simply that "plaintiff has unreasonably and inexcusably delayed her pursuit of this matter." However, in recognition of defendant's continuing non-compliance, the judge did acknowledge:

The Court notes that the Defendant has repeatedly demonstrated his disregard for his obligation to support the children of the marriage and the Orders of this Court. Therefore, the Court ORDERS that the Orders above, are not to be construed as relief of the Defendant's obligation to pay child support, any remaining arrears connected to his child support obligation or his continuing obligation to provide the Plaintiff with $2000 per week, as contribution to the medical insurance of the parties' daughter. The Court forewarns that if the Defendant fails to abide by the Court's Orders, above, he may be sanctioned, ordered to pay the Plaintiff's counsel fees and possibly incarcerated.

Plaintiff's subsequent motion for reconsideration, which was also unopposed, was denied, the judge finding that the equitable doctrine of laches barred her claim:

The Court finds that the Defendant took no action following her Motion of September 7, 2001, and that it was only upon the Defendant's Motion of October 5, 2007, that the Plaintiff raised the issue of the medical insurance contribution, for the second time in fifteen (15) years. While the Court notes that there is no bright line rule precluding the Plaintiff's claim, the Court finds that she has been inexcusably and unreasonably delayed in seeking relief and that by her inaction, the Defendant would be prejudiced by an Order enforcing these provisions today. The Court finds that the Plaintiff's request for reimbursement for orthodontic expenses, seven (7) years after they were incurred, is likewise unreasonably delayed as well.

We disagree with the motion judge's application of the laches doctrine to bar plaintiff's enforcement claim.

Laches is "the failure to assert a right within a reasonable time resulting in prejudice to the opposing side." L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). See also Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 570 (App. Div. 2003). The key factors are the length of delay, reasons for delay, and change of position by either party during the delay. L.V., supra, 347 N.J. Super. at 39. The last criterion is critical. So, for instance, in Clarke, supra, where the former wife did not file a motion for enforcement for more than twenty years, we held that the doctrine of laches did not bar her present claim for alimony because there was no evidence that her former husband changed his position or was prejudiced by the delay. 359 N.J. Super. at 570.

Likewise here, defendant does not deny the amounts claimed to be owed plaintiff by virtue of his court-ordered obligations on behalf of his two children. Nor has he ever asserted the equitable doctrines of estoppel and laches, which the motion judge apparently raised sua sponte. And even if defendant had relied on these equitable defenses below, it is clear, in our view, that neither doctrine affords him any relief, given his continuous non-compliance with court orders and refusal to pay, which the motion judge himself was constrained to acknowledge. Furthermore, defendant never opposed plaintiff's request for relief nor her motion for reconsideration of the court's denial, and never claimed he changed his position or was prejudiced by the delay. Thus, the motion judge's contrary finding lacks any support in the record.

Just as importantly, plaintiff never waived her claim for payment of health insurance and unreimbursed medical expenses incurred on behalf of the children. It is clear that payments to off-set unreimbursed medical expenses and costs of health insurance are intended to provide essential benefits to the parties' children. As such, the right to receive these payments belongs to the children, and is therefore not subject to waiver by a custodial parent. See L.V., supra, 347 N.J. Super. at 41 (citing Kopak v. Polzer, 4 N.J. 327, 333 (1950); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993); Savarese v. Corcoran, 311 N.J. Super. 240, 246 (Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998)). Even an explicit waiver agreement cannot vitiate a child's right to support. See, e.g., Kopak, supra, 4 N.J. at 327 (release signed by mother eight years earlier did not waive child's right to support); Martinetti, supra, 261 N.J. Super. at 508, 619 A.2d 599 (parents' agreement in a consent order that support would end when daughter turned eighteen did not waive daughter's right to support beyond her eighteenth birthday). Stated differently, even in the face of plaintiff's inaction over the years, a court reviewing a motion to enforce litigant's rights may not "impute to a child the custodial parent's negligence, purposeful delay or obstinacy so as to vitiate the child's independent right of support from a natural parent." L.V., supra, 347 N.J. Super. at 40 (citing Perez v. Singh, 97 Cal. Rptr. 920, ___ (1971); Ellison v. Walter ex rel. Walter, 834 P.2d 680, ___ (Wyo. 1992)). Thus, to the extent his denial of relief was based on the notion of waiver, the motion judge clearly erred in his application of the law.

Separate and apart from the absence of waiver, defendant should not obtain the advantage of the equitable defense of laches. To be sure, the delay was long. However, plaintiff did move in 2001 to enforce defendant's child support obligations, all of which he was delinquent in paying. The court, at that time, did not bar relief because of laches although by then eight years had elapsed since the final judgment of divorce. Instead, the court inexplicably denied relief on account of defendant's failure to provide the requisite financial information. And when ordered to do so, defendant remained non-compliant. Under these circumstances, defendant should not benefit from his continuous flaunting of judicial orders. Thus, the balance of equities here weighs heavily against application of the doctrine of laches. Defendant has suffered no demonstrable harm occasioned by plaintiff's delay in enforcing his child support obligation. Such delay, in any event, does not by law operate to bar enforcement of a right belonging solely to the children for whose benefit the obligation arose in the first instance. And lastly, defendant's own inequitable conduct over the years argues compellingly against his receiving any of the benefits of the equitable defense.

We are therefore constrained to remand the matter for a plenary hearing to determine the amount due from defendant for child support arrears and contributions to the children's health insurance and unreimbursed medical expenses. In fixing the method and timing of payment of this accumulated sum, we direct the Family Part to consider the great length of time that has elapsed in this matter, due in part to plaintiff's failure to seek more timely relief, and is presumed adverse impact on defendant's ability to immediately satisfy these court-imposed obligations.

Reversed and remanded for further proceedings consistent with this opinion.

This amount was increased to $30 per week by order of September 7, 2001.

We have not been provided with a legible copy of the September 7, 2001 order.





December 4, 2008