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D''Angelo v. D''Angelo

January 24, 1986

VERA D'ANGELO, PLAINTIFF,
v.
S. MICHAEL D'ANGELO AND DANIEL O'CONNOR, CO-EXECUTORS OF THE ESTATE OF WILLIAM A. D'ANGELO, DEFENDANTS



Sorkow, P.J.F.P.

Sorkow

This is plaintiff's motion to enforce litigants rights against a now deceased defendant's co-executors.

The parties hereto were divorced on December 6, 1984. A property settlement agreement was incorporated into the judgment of divorce. Before defendant could satisfy his obligations pursuant to the judgment, he died.

The property settlement agreement provided that William A. D'Angelo was to deliver certain personalty and convey title to some realty to plaintiff. Additionally, he was to make a cash payment in satisfaction of equitable distribution.

More than one year has elapsed since the entry by consent of the judgment of divorce and plaintiff alleges that neither defendant nor his co-executors have complied with the terms of the judgment of divorce.

The paramount issue to be addressed is one of jurisdiction: whether this motion to enforce litigant's rights properly belongs in the Chancery Division/Family Part as a post-judgment enforcement proceeding or with the Law Division/Probate Part as a creditor's claim against the deceased husband's estate.

Plaintiff argues that this court can enforce its judgment against the decedent's estate routinely as with any other enforcement proceeding.

Defendant's co-executors argue that this case belongs in the Law Division/Probate Part because upon the death of defendant-husband the dissolution proceeding no longer has continuing efficacy. In addition, since the motion was filed directly upon the co-executor, they claim improper joinder because there is no court order authorizing their substitution in the matrimonial proceeding.

Actions to be brought in the Family Part are controlled by R. 5:1-2 which provides that:

All civil actions in which the principal claim is unique to and arises out of a family or family type relationship shall be brought in the Family Part.

The relief sought by plaintiff is not probate in nature. Rather, plaintiff seeks an enforcement of the final judgment of divorce which was entered by this court on December 6, 1984.

Clearly, this court has authority to enforce its own judgments. Joseph Harris and Sons, Inc. v. Van Loan, 23 N.J. 466, 469 (1957). To hold otherwise would frustrate the power of the court to enforce its own decrees. ...


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