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Potter v. Potter

Decided: June 25, 1979.

WILLIAM T. POTTER, PLAINTIFF-APPELLANT,
v.
PATRICIA M. POTTER, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Chancery Division, Monmouth County.

Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

[169 NJSuper Page 142] This is a post-judgment matrimonial action in which the disputants are plaintiff William T. Potter and the intervenor Monmouth County Welfare Board (Welfare). The subject of the dispute is the status of a retroactive social security disability payment received by defendant wife for the benefit of the minor children of the marriage and the effect of that payment on plaintiff's obligation, if any, to the welfare board and in respect of child support arrearages.

Insofar as we are able to ascertain from this minimal record and the representations of counsel at oral argument, the parties were married in 1961 and had four children, respectively born in 1961, 1963, 1967 and 1969. It appears that plaintiff became disabled as a result of a work-connected accident sustained by him in April 1975, and it is represented that he has not worked nor been able to work since that time.*fn1 The marital relationship had apparently already been in the state of progressive deterioration for several years, and in July 1975 plaintiff left the marital residence -- forced to do so, he alleges, by reason of defendant's acts of cruelty towards him. At that time defendant apparently applied to Welfare for assistance for herself and her children and was accorded a monthly grant. In September 1975 she made an assignment in favor of Welfare of her own and the children's right to support from plaintiff and also commenced a support action against him in the Juvenile and Domestic Relations Court. That action resulted in the entry of an order requiring him to make weekly payments of $70 for the support of his wife and children, plus payments on the mortgage on the house. He did not, however, make any payments on account of that order, ostensibly because of his disability and consequent unemployability, and was in arrearage thereon in the amount of $1,307 on May 13, 1976 when, on his motion for relief based on his physical condition, the Juvenile and Domestic Relations Court suspended his obligation to make any future payments.

In January 1977 plaintiff instituted this divorce action by a complaint which, as required by R. 4:77-1(c), referred to the Juvenile and Domestic Relations Court action above described and recited the facts both as to the original order and the stay thereof. A final judgment of divorce was entered on August 25, 1977. Despite the requirements of R. [169 NJSuper Page 144] 5:6-3(b), neither the court nor a party caused the Juvenile and Domestic Relations Court Clerk to certify to the Chancery Division the amount of the arrearages on the lower court order, and the final judgment was silent in respect thereof. It does not appear possible at this point to reconstruct the reason for that silence. It might have been because of oversight, or because the May 13, 1976 lower court order intended to relieve the husband from accrued arrearages, or because the Chancery Division judge opted to do so or because of some other consideration not apparent in the record. At any rate, by administrative action, the Juvenile and Domestic Relations Court closed its file in the matter on September 29, 1977, noting that the Chancery Division divorce judgment had superseded any outstanding order of the lower court.*fn2

The support provision contained in the August 1977 judgment of divorce was, in our view, ambiguous in the extreme. No alimony was allowed defendant-wife, and this apparently as a result of agreement between the parties. With respect to child support, the judgment provided that "plaintiff shall pay to the defendant the sum of $250.00 per month, * * * which monies shall accrue and not be deemed due and payable until said plaintiff resumes normative work activity." As of the date of oral argument before us, nothing has been "due and payable" pursuant to this judgment since, as all parties agree, plaintiff has not resumed work activity of any kind. The problem here relates to the accrual provision, assuming that an order apparently so self-contradictory is viable at all. We note, in passing, the evident anomaly of having arrearages accrue for a period as to which the court itself has determined that there is no ability to make any payments at all. We would think, in such circumstances, that accruing of arrearages should be suspended for the period for which the payment obligation itself is suspended and if at some future time a party with the obligation of support obtains either the income or assets enabling him to defray the needs of his family, an appropriate order would then be entered.

In any event, not more than a month or two had passed after the entry of the final judgment of divorce when defendant received from the Social Security Administration on behalf of the children a retroactive lump sum dependent's disability payment, referable to plaintiff's injuries, in the amount of $5,192.80 as well as retroactive benefits of $784 for herself, followed by monthly payments to her for the benefit of the children in the amount of $342.80. Welfare benefits were consequently discontinued. Thus, plaintiff's unpaid obligation at the time defendant started receiving these monthly payments was at most $500 under the Chancery Division judgment and $1,307 on the Juvenile and Domestic Relations Court order. Some six months later, in April 1978, plaintiff moved the Chancery Division for an order crediting all of his arrearages with the lump sum retroactive

disability payments and, insofar as we are able to determine, for a determination that his adjudicated prospective support obligation was to be deemed satisfied by defendant's receipt of the monthly disability benefit, a sum in fact exceeding the adjudicative obligation. Defendant did not take a position with respect to these motions but Welfare was permitted to intervene on its motion in order to resist the application for the credit and to seek a judgment of reimbursement against plaintiff. The consequent order entered, from which plaintiff appeals, denied the credit, directed an unexecutable judgment in favor of Welfare in the amount of $7,187 constituting "accrued arrearages" and modified the August 1977 divorce judgment nunc pro tunc as of the date of defendant's receipt of the disability benefits so as to "stay" child support. We reverse.

We deal first with the judgment of reimbursement in favor of Welfare. Welfare candidly conceded at oral argument that it relies exclusively on N.J.S.A. 44:1-140 to 146, inclusive, as the source of its authority to proceed directly against plaintiff.*fn3 N.J.S.A. 44:1-140 provides that, among others, the father and husband of persons applying for and eligible to receive public assistance "shall, if of sufficient ability," maintain the person as shall be ordered by a court of competent jurisdiction. N.J.S.A. 44:1-143 authorizes

the entry of an order requiring payment of "suitable support and maintenance" for the wife and children of a deserting husband and father. And N.J.S.A. 44:1-146 permits the welfare ...


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