Plaintiffs, by motion, seek to establish the amount of arrearages under an order fixing the amount of support and maintenance for two children. Defendant counters with an application for the discharge of said order and extinguishment of any arrearages and dismissal of the motion.
Plaintiffs secured an order in this cause on December 2, 1940, by the terms of which defendant was ordered to pay the sum of $40 per week for the support and maintenance of his wife and two children, William and John. William was born on July 17, 1928 and was about 12 years of age at the time of the making of the order. John was born on January 6, 1931 and was then about 10 years of age.
The parties were divorced on November 1, 1940.
On June 11, 1942 the above order was modified to eliminate therefrom defendant's former wife and reduced the amount to be paid thereunder. The order reads as follows:
"* * * That the defendant, William Henry Slep, pay to the petitioner, or to her solicitors, the sum of $25.00 a week for the support and maintenance of the infant children in her custody, William Henry Slep, III, and John Harvey Slep, said payments to commence as of March 23, 1942."
It was further provided in said order that out of the moneys realized from the sequestration proceedings, after
paying the various items, the plaintiff's former attorney, J. Albert Homan, Esq., now deceased, pay out of the fund in his possession the moneys that were left over, to wit, $2,935.12, and
"to pay and deliver the balance of said fund to Edward J. Whelan, Clerk of this Court, and that said Clerk be directed to pay therefrom the weekly installments for the support and maintenance of the infant children, William Henry Slep, III, and John Harvey Slep, until such funds shall have been exhausted, or until the further order of this Court."
This fund which was used for the support and maintenance of said children was soon exhausted. The last payment was made out of the above fund in April of 1944, since which time defendant has not made any payments in accordance with the provisions of the order. Plaintiffs failed to institute any proceedings of whatever nature to compel the defendant to abide by the provisions of the order until the month of June 1956.
With respect to the enforcement of the allowance for children, the methods available are the same as those for the enforcement of the orders for support of a wife.
Plaintiffs properly admit that the enforcement, collection, modification and extinguishment of arrearages of this nature and the court's control of past-due installments of support for children is an equitable remedy within the discretion of the court. Duffy v. Duffy , 19 N.J. Misc. 332 (Ch. 1941); Madden v. Madden , 136 N.J. Eq. 132 (E. & A. 1945); Federbush v. Federbush , 5 N.J. Super. 107 (App. Div. 1949); Liss v. Liss , 19 N.J. Super. 358 (App. Div. 1952), are authority for the general principle that under our divorce statute ...