On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-11068-85.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Sabatino and Alvarez.
This post-judgment matrimonial dispute arises out of an order entered by the Family Part more than twelve years ago, on March 31, 1995. Among other things, that 1995 order had directed defendant, William F. Tegethoff ("the ex-husband"), to pay $1800 in child support arrears to plaintiff, Margarette Tegethoff, now known as Margarette O'Prey ("the ex-wife").
After an audit conducted by the Probation Department showed that the $1800 in arrears was still owed as of the end of 2005, the ex-husband filed a motion for relief, contending that he fully paid those sums a decade earlier. That motion was denied, resulting in the ex-husband's present appeal. We affirm.
The pertinent chronology requires little discussion. The parties were divorced in the mid 1980s.*fn1 As part of the terms of the divorce, the ex-husband was obligated to pay his ex-wife alimony, as well as child support for the benefit of their daughter.*fn2 As time progressed, the ex-husband fell behind in both spousal and child support.
The accumulated arrears resulted in the parties consensually entering into an order dated March 31, 1995. Noting that the parties' daughter already had become emancipated, the order recited that the arrears in child support, accrued through the date of her emancipation, was $1800. The order required the ex-husband to reduce those child support arrears "at the rate of $50.00 per month in addition to regular alimony payments." Alimony in the sum of $300 per month was to continue.
More than a decade later, a dispute arose concerning the amount of support arrears. When this dispute came before the Family Part, the judge requested the Probation Department to perform an audit. The results of the audit were supplied on January 25, 2006. The audit showed that, as of December 30, 2005, the ex-husband still owed $4,950.99 in spousal support and $1800 in child support.
Nine months after receiving the audit results from Probation, the ex-husband filed a motion in October 2006. His motion sought to vacate the child support arrears, claiming that he paid the $1800 in 1995 directly to his ex-wife. The ex-wife opposed that application. After hearing oral argument, the trial court denied the motion on January 5, 2007. The motion judge determined that the ex-husband's claims of payments in 1995 were advanced far too late, and thus were barred by the doctrine of laches. The ex-husband now appeals.
The ex-husband first contends that he has been erroneously denied credit, against his child support arrears, for a $1200 payment he made to his ex-wife on March 1, 1995. It is self-evident from the March 31, 1995 order that his contention lacks merit. The ex-husband is confusing child support with spousal support. Paragraph 3 of the March 31, 1995 order specifies "[t]hat the arrears in alimony payable by [the ex-husband] as of March 1, 1995 was $1,200.00[,] which sum was paid to [the ex-wife] on said date." (Emphasis added.) We further note that the March 31, 1995 order was submitted on the letterhead of the ex-husband's then-attorney.
Additionally, the ex-husband claims that he should be credited another $300 for two $150 checks he wrote to the ex-wife in 1995. He tenders copies of the front of those checks, along with a copy of his personal check register from 1995. The countersigned backs of those checks are not supplied. There is no proof before us that the ex-husband contemporaneously informed Probation in 1995 about these two alleged payments. Nor did the ex-husband present the checks as proof to the court until October 2006, more than a decade after they were written and more than nine months after the ex-husband was supplied with Probation's audit.*fn3
Under the circumstances, we agree with the motion judge that principles of laches apply here, because the ex-husband failed to act expeditiously in seeking credit for his alleged past payments. Laches may be invoked where a party "engages in an inexcusable and unexplained delay in exercising [his] right[s] to the prejudice of the other party." Knorr v. Smeal, 178 N.J. 169, 181 (2003); see also County of Morris v. Fauver, 153 N.J. 80, 105 (1998); In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000). The motion transcript reflects that the ex-wife had difficulty recalling in 2007 whether the ex-husband had directly paid ...