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Schmidt v. Schmidt

Decided: May 13, 1987.

VERENA SCHMIDT, PLAINTIFF,
v.
WOLFGANG SCHMIDT, DEFENDANT



Krafte, J.s.c.

Krafte

Underlying this dispute is a motion filed by defendant-husband to vacate an arrears judgment entered against him in the amount of $17,480.00 plus interest. Defendant, relying on N.J.S.A. 9:3-50(a), claims that he is not responsible for said arrears in that his child support obligation was not vested prior to the adoption of his two children by plaintiff-wife's present husband. N.J.S.A. 9:3-50(a) provides:

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 entry of the judgment of adoption.

Despite the clear language of the statute, plaintiff submits that she is entitled to child support arrears because defendant prevented her from proceeding to enforce a judgment by fraudulently concealing his whereabouts for a period of over thirteen years. Thus, this Court is faced with the question of whether defendant can be equitably estopped from relying on N.J.S.A. 9:3-50(a) in order to seek relief from the judgment for arrearages against him in light of his allegedly fraudulent conduct.

A review of the background, procedural history, and controverted facts is necessary for a complete understanding of this case. The parties were divorced on October 6, 1967. Pursuant

to the terms of a court order entered in connection with this matter, defendant was to pay to plaintiff the sum of $40.00 per week for support of the parties' two children.

By motion returnable August 24, 1984, plaintiff sought a judgment in the sum of $17,480.00 plus interest as the amount of arrears unpaid in connection with the divorce judgment. Plaintiff asserted that the last payment defendant made in support of the children was on June 9, 1970. Further, plaintiff maintained that defendant intentionally kept his whereabouts unknown so that she was not able to enforce the terms of the support order after his last payment. As a result of plaintiff's application, a judgment was entered against defendant on August 31, 1984, in the sum of $17,480. together with interest.

By motion returnable June 7, 1985, almost one year after the aforementioned judgment was entered, defendant seeks to set aside the August 31, 1984 order on the grounds of fraud and misrepresentation of facts by plaintiff.

As to defendant's allegations of fraud and misrepresentation of facts by plaintiff, defendant contends that plaintiff herself perpetrated a fraud upon the court when she filed her Notice of Motion seeking support arrears by withholding the fact that the parties' children were adopted by her present husband in 1973, by failing to set forth calculations of arrears and by failing to bring to the court's attention the fact that she received welfare assistance for the support of the children. Plaintiff counters that there was no reason to intentionally withhold the fact that her present husband adopted the parties' children in that the arrearages were calculated only up until the date of the adoption. Thus, the arrearages were accrued from the date defendant ceased payments, June 9, 1970, to the date the children were adopted, October 30, 1978, being a total of 435 weeks at $40.00 per week, or $17,480. plus interest. Plaintiff's position is that the fact that plaintiff received welfare is irrelevant and should not relieve defendant of his support obligation.

As a result of the motion this Court ruled that there was no evidence of fraud or misrepresentation perpetrated by plaintiff

to justify vacating the judgment for arrears in light of the fact that the support arrears were calculated to the date of the adoption. Her mere acceptance of welfare is not tantamount to fraud. Thus, defendant failed to carry his ...


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