On appeal from Superior Court, Chancery Division, Essex County.
Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.
With leave of court granted to defendant to prosecute this interlocutory appeal, defendant seeks to reverse orders of the trial court (a) entered on April 18, 1977 denying his application to vacate five judgments entered on arrearages in alimony and child support previously adjudicated in favor of plaintiff, and (b) entered on September 19, 1977 authorizing a sequestrator to sell defendant's real property in execution upon said judgments. Defendant had sought to vacate the judgments based upon plaintiff's remarriage and other changes in circumstances, relying in part on N.J.S.A. 2A:34-25. This court denied a stay of the foregoing orders but ordered the proceeds of the sale held in escrow, with certain exceptions, until further order of the court.
The first order of the trial court which is in issue was entered pursuant to a written opinion holding that N.J.S.A. 2A:34-25 does not authorize the vacating of judgments for alimony arrearages entered prior to plaintiff's remarriage. The opinion also held that the judgments were final as to child support arrearages previously adjudicated and would not be vacated on defendant's application. The order of September 19, 1977 authorizing execution on the judgments follows from the same principles of law.
The parties were divorced in December 1970. The divorce judgment incorporated a settlement agreement dated March
17, 1970 which called upon defendant to pay alimony of $37,000 a year and support and educational expenses for their son Robert until he finishes college and graduate or professional school.
Defendant promptly began to default in these payments and plaintiff moved to fix the amount of the arrearages and to compel their payment. Ultimately five judgments were entered and docketed. See N.J.S.A. 2A:16-18 and N.J.S.A. 2A:16-19 (providing for a lien on real estate when an order or judgment entered pursuant to N.J.S.A. 2A:16-18 is entered on the civil judgment and order docket of the Superior Court). The judgments were for arrearages, in the aggregate, in excess of $64,000 for alimony, $17,500 for the son's support and college expenses, and $21,500 for counsel fees. The adjudication of arrearages was made from time to time prior to plaintiff's remarriage in November 1973.*fn1 They cover various periods from June 1970 to October 31, 1973.
We are told that defendant unsuccessfully sought to set aside the settlement agreement and that appeals to this court and the Supreme Court were unavailing.*fn2 Defendant did not seek review of the orders fixing arrearages.*fn3 Only
after plaintiff sought to enforce the judgments did defendant, by cross-motion heard in September 1976, seek to vacate the orders and judgments for alimony and child support.
Orders for alimony and child support may be amended from time to time. N.J.S.A. 2A:34-23 provides: "Orders so made may be revised and altered by the court from time to time as circumstances may require." Such orders are deemed to operate in praesenti and are always subject to review on a showing of changed circumstances. See Chalmers v. Chalmers , 65 N.J. 186, 192 (1974); cf. Smith v. Smith , 72 N.J. 350, 360 (1977); Martindell v. Martindell , 21 N.J. 341, 352 (1956). Moreover, on a spouse's application to fix the amount of arrearages and to compel their payment, the court has discretion to determine whether the prior alimony or support order should be enforced and whether and to what extent a spouse should be forced to pay arrearages. Madden v. Madden , 136 N.J. Eq. 132, 136 (E. & A. 1945); Welser v. Welser , 54 N.J. Super. 555 (App. Div. 1959). Alimony and support obligations do not automatically "vest as they become in arrears but are subject to the control of the court." Federbush v. Federbush , 5 N.J. Super. 107, 110 (App. Div. 1949). Thus, orders for future alimony and support must not be deemed an "order for the payment of money" with the same effect as money judgments entered in the Superior Court, Law Division, within the meaning of N.J.S.A. 2A:16-18.
There is a difference between fixed and unfixed arrearages. Joseph Harris & Sons, Inc. v. Van Loan , 23 N.J. 466 (1957); Savoie v. Savoie , 26 N.J. Misc. 67, 57 A.2d 469 (Ch. 1947). The Joseph Harris & Sons, Inc. case concerned an application by a divorced husband's creditor to quash a writ of execution issued on ...