Will a judgment for arrearages under a support order against the biological father of minor children survive the entry of a judgment of adoption of the children by the stepfather? To answer this question requires construction of the recent comprehensive revision of the Adoption Act, N.J.S.A. 9:3-37 et seq. (L. 1977, c. 367, effective March 8, 1978). Consideration of the distinction between vested and unvested rights is implicit in this case of first impression.
The facts are simple and essentially uncontroverted. C. (hereinafter Mrs. P.) and R. were divorced by judgment of this court entered on May 22, 1974. By the terms of the judgment R. was to pay $50 weekly to C. through the Morris County Probation Department for the support and maintenance of his two minor children. On June 2, 1974 C. married P.
Almost immediately R. became delinquent in meeting his support obligations. No payments were made from the middle of 1976 until May 30, 1978.*fn1 Numerous enforcement motions brought by the Probation Department on behalf of Mrs. P.
(R. 1:10-5) were largely unsuccessful because R. had absented himself from the State. At least one bench warrant for his failure to appear in court was issued. The arrears now amount to $5,130.
P. now seeks to adopt the children, N.J.S.A. 9:3-45.*fn2 Mrs. P. consents to the adoption. R., who has now returned to New Jersey, does not object to the adoption. However, R. has refused to consent to the adoption without a release from Mrs. P. for the child support arrears. Mrs. P. now moves to fix the sum of the arrearages and reduce them to judgment, on the authority of N.J.S.A. 2A:16-18; Biddle v. Biddle , 150 N.J. Super. 185 (Ch. Div. 1977). R. resists, denying the amount of arrears. R., unemployed through no fault of his own for significant periods of time while the arrearages developed, argues that a judgment of adoption will extinguish both his future and past obligations to the children.*fn3 He has not made a motion to vacate the child support provision of the judgment, nor the accrued arrears. Nor is an issue of waiver, equitable estoppel or laches presented. Tancredi v. Tancredi , 101 N.J. Super. 259 (App. Div. 1968); Liss v. Liss , 19 N.J. Super. 358 (App. Div. 1952).
Child support during minority is a continuous duty of both parents. Federbush v. Federbush , 5 N.J. Super. 107 (App. Div. 1949). This obligation may be defined by court order. N.J.S.A. 2A:34-23, 24; N.J.S.A. 9:2-1, et seq. Orders operate for the present, but are subject to modification upon a showing of change of circumstances. See N.J.S.A. 2A:34-23; Smith v. Smith , 72 N.J. 350, 360
(1977). Child support payments do not vest as they accrue, nor do past due installments automatically vest. Federbush v. Federbush , 5 N.J. Super. 107, 110, supra. The extent and means by which delinquent payments are enforced remains within the court's discretion. Welser v. Welser , 54 N.J. Super. 555 (App. Div. 1959).
The duty to support minor children ordinarily ceases upon emancipation by age, marriage, self-sufficiency or upon termination of parental rights. Cohen v. Cohen , 6 N.J. Super. 26 (App. Div. 1949); but see Kruvant v. Kruvant , 100 N.J. Super. 107, 119-120 (App. Div. 1968); and see, generally, Annotation, 39 A.L.R. 3d 1292 (1971). However, the court may in appropriate circumstances enter a support order under N.J.S.A. 2A:34-23 which survives the death of their father. Grotsky v. Grotsky , 58 N.J. 354, 361 (1971).
The legal effect of an adoption is set forth in N.J.S.A. 9:3-50, which provides:
a. The entry of a judgment of adoption shall terminate all relationships between the adopted child and his parents and all rights, duties and obligations of any person that are founded upon such relationships , including rights of inheritance under the intestate laws of this State, except such rights as may have vested prior to the entry of the judgment of adoption; provided, however, that when the plaintiff is a stepfather or stepmother of the adopted child and the adoption is consummated with the consent and approval of the mother or father, respectively, such adoption shall not affect or terminate any relationship between the child and such mother or father or any rights, duties or obligations based ...