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Welser v. Welser

Decided: March 23, 1959.

MARY WELSER, PLAINTIFF-APPELLANT,
v.
FRANK WELSER, DEFENDANT-RESPONDENT



Price, Schettino and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.

Schettino

Appeal is by plaintiff-wife from an order of the Superior Court, Chancery Division, cancelling certain arrearages of support and maintenance and thus limiting her award of arrearages to $1,605, and further limiting the payment of the arrearages at the rate of $5 per week.

On April 16, 1946 a final decree of separate maintenance in favor of plaintiff was entered providing in part that defendant pay her the sum of $15 per week for her support and maintenance. Plaintiff was also allowed use of their apartment located in the premises owned by them as tenants by the entirety. Admittedly, defendant made the required payments until 1951.

On November 9, 1951 plaintiff filed a verified "complaint" stating that defendant failed to make payments since February 12, 1951. This complaint was actually a petition. Plaintiff sought an accounting of the moneys due as defendant's share of the expenses for the premises owned by them and for the apartment, an adjudication that defendant be held in contempt for failure to pay and that "plaintiff may have such further relief as may be equitable and just." Plaintiff thereafter submitted an affidavit dated January 7, 1952 and

on January 11, 1952 obtained an order requiring defendant to show cause in part:

"2) Why an account should not be taken of the monies due to the plaintiff from the defendant by the terms of said Final Decree for arrearages of support and maintenance at the rate of $15.00 per week as per the terms of said decree.

"3) Why an execution should not issue for the total amount thus found to be due from the defendant to this plaintiff, according to the practice of this court in such case made and provided."

The return date of the order was adjourned several times because plaintiff was ill. On September 10, 1953, the following consent order was signed: "that said order to show cause be and the same is hereby continued without date, but on 5 days' notice by either party to the other, the same may be restored to the list of motions." In May 1957 defendant was served with plaintiff's notice of motion returnable May 24, 1957 seeking to restore the application of 1951 to the list. By a consent order, dated August 14, 1957, the cause was restored.

On the first hearing date, April 10, 1958, the trial court was notified that plaintiff had been committed to Essex County Overbrook Hospital as a person of unsound mind; that her son by another marriage had notified the superintendent of the hospital that the son would ask for the appointment of a guardian ad litem to protect plaintiff in these proceedings, and that he would ask for the appointment of Ira A. Levy, Esquire, as such guardian. Mr. Levy, a counsellor at law of New Jersey, was appointed by the court.

Thereafter, at the hearing on April 15, 1958, upon the objection of defendant's attorney the trial court directed the submission of another order vacating the appointment of the guardian ad litem. No such order was ever filed. At oral argument plaintiff's attorney stated that he believed none had been submitted.

We hold that the circumstances presented to the trial court on April 10, 1958 properly required the appointment

of a guardian ad litem. R.R. 4:30-2; 4:38-2. As the oral order vacating his appointment was not made formal, we direct Mr. Levy to continue as guardian ad litem and to take all necessary steps to protect the interests of plaintiff. Olson v. Piazza , 92 N.J. Eq. 475, 477 (Ch. 1921); Borough of East Paterson v. Karkus , 136 N.J. Eq. 286, 289 (Ch. 1945). By this direction we intend no criticism of plaintiff's counsel. Cf. Silverstein v. Schneider , 110 N.J.L. 239, 242 (E. & A. 1933).

At the hearings defendant testified that he is an automobile mechanic taking home between $55 and $67 "If I work a full week," and that his total weekly expenses amounted to $56.50. Defendant admitted and the court found that defendant had not made payments in compliance with the provisions of the final decree since February 12, 1951 to the date of the opinion, covering a period of 379 weeks, or a total of $5,685. The trial court dismissed plaintiff's claim seeking a property accounting, found defendant in arrears as stated above, allowed plaintiff arrearages of $1,605 for only the one year preceding the notice of motion returnable May 24, 1957, and extinguished arrears in the sum of $4,080 covering the previous years' defaults. The court further denied plaintiff the right to execution and allowed defendant to pay the arrearages at the rate of $5 per week. The judgment containing these determinations stated that the action was heard "on complaint and order to show cause." The judgment was filed on June 26, 1958, and on July 10, 1958 an abstract of the judgment was recorded in the civil law docket of the Superior Court Clerk's office pursuant to N.J.S. 2 A:16-18.

Appeal was taken on July 23, 1958. Defendant did not file a brief. Because the court felt that questions of grave public policy might be involved, it appointed Morris N. Hartman, Esquire, a recognized expert in the matrimonial field, as amicus curiae.

Plaintiff argues that, once the trial court determined that a certain amount of arrearages was due plaintiff and such determination was entered on ...


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