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Dolberry v. Dolberry

Decided: December 10, 1982.

JEANNE DOLBERRY, PLAINTIFF,
v.
WILLIAM DOLBERRY, DEFENDANT



Krafte, J.J.D.R.C. (temporarily assigned).

Krafte

[188 NJSuper Page 267] This matter was brought before this court on a post-judgment application to compel payment on alimony and child support arrears arising under a prior order of support. The issue presented by this motion is as follows: Is the Bergen County Welfare Board's right to the alimony portion of arrears ($1,335) extinguished pursuant to N.J.S.A. 2A:34-25 by virtue of the remarriage of the former wife without said arrears having been reduced to judgment? No New Jersey case has addressed this issue heretofore.

The relevant facts are not in dispute.

On May 25, 1976 the then Mrs. Dolberry made application for and was granted welfare assistance for herself and two infant children. That same day, as a condition of such assistance, she was required to and did sign an assignment of any and all rights to support to the welfare board, pursuant to N.J.A.C. 10:81-1 et seq.; Appendix D, ยง 220, "Assignment of Support Rights," Form PA 10-G.*fn1 Thereafter the welfare board, on her behalf, brought an action for support against defendant, and an order was entered on July 16, 1976. That order, the subject of this motion, required defendant to pay $70 a week support, allocated $40 as child support and $30 as alimony, through the Bergen County Probation Department for the benefit of the welfare board.

The welfare board terminated assistance to Mrs. Dolberry on March 30, 1979 but not before some $3,115 in arrears had accumulated. These arrears were allocated on the basis of the original order as $1,780 in child support and $1,335 in alimony. They were not reduced to judgment and remained uncollected when the within enforcement application was made.

In the interim the parties divorced and Mrs. Dolberry remarried on or about December 27, 1980. It is the defendant's position that plaintiff's remarriage nullified and vacated that portion of arrears allocated to alimony because it was not reduced to judgment prior to the time of her remarriage. He presses this argument despite the fact that it is agreed that these monies are owing to the welfare board and not the former Mrs. Dolberry.

Defendant argues that this court is without authority to enter an order respecting payment of these arrears and cites N.J.S.A. 2A:34-25 as authority for his proposition. He contends that the

welfare board, as assignee of plaintiff, held her right to "alimony" and, as such assignee, lost all rights to such alimony on the day she remarried, because she had lost them. He further asserts that to reason otherwise would give the welfare board, the assignee, greater rights than the former Mrs. Dolberry, the assignor, would have at the present time.

N.J.S.A. 2A:34-25 reads:

If after the judgment of divorce the wife shall remarry, the court shall not make any order as to the alimony of such wife except that upon application of the former husband, on notice and on proof of the marriage of the former wife after the judgment of divorce, the court shall modify any order or judgment as to the alimony of the former wife by vacating and annulling any and all provision in any such order or judgment, or both, directing the payment of money for the support of the former wife.

This statute was construed to contain the "mandatory requirement that the court vacate all support for the wife upon application of the former husband if the former wife shall remarry." Lepis v. Lepis, 83 N.J. 139, 151, n. 4 (1980); Sharpe v. Sharpe, 109 N.J. Super. 410, 417 (Ch.Div.1970). The courts retain no discretion to allow the wife alimony payments following a subsequent marriage. Flaxman v. Flaxman, 57 N.J. 458 (1971); Richards v. Richards, 139 N.J. Super. 207 (Ch.Div.1976); Ferreira v. Lyons, 53 N.J. Super. 84 (Ch.Div.1958).

In Stein v. Fellerman, 144 N.J. Super. 444 (App.Div.1976), an ex-wife who had remarried sought payment of alimony arrears which had accrued prior to her remarriage under a property ...


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