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Clarke v. Clarke

April 25, 2003

PHYLLIS M. CLARKE, PLAINTIFF/RESPONDENT,
v.
GEORGE CLARKE, BY HIS PERSONAL REPRESENTATIVE, LINDA COSTINE, DEFENDANT/APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County Docket No. M-4889-74.

Before Judges Pressler, Wallace, Jr., and Hoens.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 4, 2003

Defendant George Clarke appeals from an order of the Chancery Division awarding plaintiff Phyllis Clarke $118,700 for alimony arrearages plus a separate award for interest, attorneys' fees, and costs. Defendant contends that (1) plaintiff's claim for alimony arrears is barred by the doctrine of either laches, waiver, or equitable estoppel, and (2) the trial court erred in assessing interest on the award and in awarding plaintiff counsel fees. Except for the counsel fee issue, we affirm.

Plaintiff and defendant were divorced on June 9, 1976, following twenty-nine years of marriage. They had three adult children at the time of divorce. In addition to equitable distribution, plaintiff was awarded alimony of $100 per week. Defendant failed to comply with the orders entered by the court. Plaintiff filed numerous motions seeking enforcement, but defendant continued to avoid his obligations. In March 1978, the arrears were fixed at $4,500 as of February 13, 1978. Finally, on December 22, 1978, the court entered an order terminating the account maintained by the Union County Probation Department, noting that defendant had moved to Staten Island, New York, and that plaintiff was advised to file a Uniform Support for Dependents Law complaint, but had not done so.

Plaintiff filed no other enforcement motions until August 29, 2001, when she filed a motion seeking to fix the alimony arrears as of the death of defendant at $118,700, as well as interest, counsel fees, and costs. In her certification in support of her application and the depositions in the record, the following facts were revealed. Defendant died on January 30, 2000. The youngest daughter of the parties, Linda Costine, was appointed the personal representative of defendant's estate. Plaintiff stated she was destitute and her only income was from Social Security. She recounted the numerous motions she filed to enforce her rights, but after defendant "left the country to sail around the world," she was financially unable to take any other legal action. On occasion, she hired private investigators and requested the police to find her husband, but her efforts were not fruitful. She acknowledged that in the mid or late 1980's defendant asked her to drop the outstanding warrant so he could recover money in a lawsuit against the person to whom he sold his business. At that time, defendant promised to pay her the alimony arrears from the recovery in the lawsuit. Plaintiff cooperated, but defendant never paid her the money. Shortly before defendant's death on January 30, 2000, their daughter Janet learned that defendant was living in Cocoa Beach, Florida and told plaintiff of his whereabouts. Plaintiff retained an attorney in Florida, but before any action was filed, defendant died. Plaintiff subsequently learned that defendant transferred all of his assets to their daughter Linda. As a result, she filed an action in Florida against Linda on the theory of fraudulent transfer and she obtained an order enjoining Linda from spending any of the money.

Plaintiff also submitted certifications of their son George and their daughter Janet. George certified that in late 1978, plaintiff asked him to go to Staten Island and speak to defendant about paying her the alimony due. George traveled to the Staten Island address for defendant where a woman told him that her daughter and defendant left the country to sail around the world. George reported this information to his mother. Later, in 1988 or 1989, George renewed his relationship with defendant. He also recounted the incident where plaintiff had a warrant canceled in exchange for expected alimony payments from a lawsuit. After the lawsuit, defendant paid no money to plaintiff and again left the country. George stated that from the late 1980's until shortly before defendant's death in January 2000, he had a good relationship with defendant. During that time, George would meet his father in the Caribbean or Florida and sail to different islands with him. George believed defendant was wealthy and spent approximately eight years sailing from the Orient through the Mediterranean and then across the Atlantic Ocean to the United States. George was aware his father spent some time in Annapolis, Maryland, where he lived on a boat and sailed from there to the Caribbean. He said his father forbade him from telling plaintiff where he was and that he honored his father's wishes. George stated that although he knew plaintiff was looking for defendant to collect her back alimony, he never told plaintiff where defendant was, but he intended to give plaintiff money out of his anticipated inheritance.

Janet's certification was consistent with George's. Further, Janet explained that she obtained her father's Florida address from a computer search and gave it to her mother shortly before the Florida action was initiated.

In her certification in opposition to plaintiff's motion, Linda certified she was the personal representative of defendant's estate. She asserted that her sister Janet controls plaintiff and that Janet's fervor increased after defendant died. It is Linda's belief that the only way Janet and George can reach defendant's money is by forcing their mother to take this action. Linda claimed in her certification that plaintiff had deteriorated mentally. She claimed that her mother did not need the alimony and that plaintiff, Janet, and George knew where defendant was at numerous times during the last twenty-six years.

Linda attached to her certification a transcript of a taped conversation she had with defendant in 1999. In the conversation, defendant discusses some of his investments with Linda and some tax consequences of the way he has structured the investments. At one point, Linda asked defendant if there was anything he wanted to say to anyone on the tape. Defendant replied that he left no money to Janet because he had no contact with her and had not provided for George because George had fought with him while in a drunken rage.

Plaintiff submitted a reply certification and disagreed with many of Linda's assertions. Plaintiff certified she was not suffering from dementia. She sought to find defendant many times but could not find him, did not live the comfortable lifestyle Linda described, spent most of her cash from equitable distribution on attorneys' fees, collected rent from her children to survive, and filed this application to obtain the alimony rightfully belonging to her.

On November 2, 2001, the motion judge heard oral argument. The judge found that following the divorce judgment, plaintiff made many applications to the court to enforce the alimony award, but defendant refused to pay alimony. The judge was satisfied that defendant left the jurisdiction, and that despite defendant's attorney's argument that plaintiff said "I do not want your money," the judge found no certification to support that assertion. In determining whether to enforce the alimony provision in the judgment or to apply estoppel because of plaintiff's actions or lack thereof, the judge stated:

Now in arguing over the waiver, Linda Costine, defendant's [] estate representative, does argue that after several years of disinterest, the defendant had the right to rely on her waiver of alimony to live his life and to make the financial arrangements that he made. However, this Court finds ...


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