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Faro v. Heyden

December 4, 2008

ELIZABETH J. FARO, PLAINTIFF-APPELLANT,
v.
RANDEL R. VONDER HEYDEN, III, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-480-92S.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2008

Before Judges Parrillo and Lihotz.

Plaintiff Elizabeth Faro appeals from a post-judgment order of the Family Part denying her motion to enforce litigant's rights and compel defendant Randel Vonderheyden, III, to pay his child support obligations. Her appeal is unopposed. For the following reasons, we reverse and remand.

The parties had two children born during the marriage, Rachel, June 30, 1983, and Renee, April 7, 1987. The parties were divorced by final judgment of April 30, 1992, which granted plaintiff primary residential custody of the children and directed defendant to pay $90 weekly in child support; $20 weekly for health insurance*fn1 ; one-half of the unreimbursed medical expenses incurred on behalf of the children; and to provide life insurance in the amount of $100,000 for their benefit.

According to plaintiff, defendant never paid the weekly amount for the children's medical and dental insurance or his one-half share of Rachel's orthodontic expenses incurred from 1997-2000, totaling $2,881.49. Neither did he provide proof of life insurance. Defendant's non-compliance prompted an earlier motion by plaintiff to compel such payment as well as child support arrears. While the court recognized such obligations and supposedly increased defendant's weekly $20 contribution to $30, its September 7, 2001 order apparently denied plaintiff's motion without prejudice and ordered defendant to submit a current case information statement (CIS) within thirty days, which defendant failed to do,*fn2 despite defendant's continuing non-compliance.

Thereafter, plaintiff did not seek enforcement of litigant's rights until September 2007 when, in response to defendant's motion to emancipate Rachel, who married on August 18, 2007, plaintiff cross-moved to compel defendant to pay over $19,000 in accumulated health insurance contributions ($9720 from April 30, 1992 to September 7, 2001; and $9360 from September 7, 2001 to present) and one-half ($1,440.74) of Rachel's orthodontic expenses. Plaintiff also sought proof of life insurance in the reduced amount of $50,000 for their daughter Renee. Plaintiff did not contest defendant's emancipation motion and defendant neither responded to nor opposed plaintiff's cross-motion.

Without benefit of a hearing, the motion judge declared Rachel emancipated and ordered defendant to provide proof of $50,000 worth of life insurance for Renee's benefit. Despite the lack of any opposition, the judge denied all other relief sought by plaintiff, reasoning simply that "plaintiff has unreasonably and inexcusably delayed her pursuit of this matter." However, in recognition of defendant's continuing non-compliance, the judge did acknowledge:

The Court notes that the Defendant has repeatedly demonstrated his disregard for his obligation to support the children of the marriage and the Orders of this Court. Therefore, the Court ORDERS that the Orders above, are not to be construed as relief of the Defendant's obligation to pay child support, any remaining arrears connected to his child support obligation or his continuing obligation to provide the Plaintiff with $2000 per week, as contribution to the medical insurance of the parties' daughter. The Court forewarns that if the Defendant fails to abide by the Court's Orders, above, he may be sanctioned, ordered to pay the Plaintiff's counsel fees and possibly incarcerated.

Plaintiff's subsequent motion for reconsideration, which was also unopposed, was denied, the judge finding that the equitable doctrine of laches barred her claim:

The Court finds that the Defendant took no action following her Motion of September 7, 2001, and that it was only upon the Defendant's Motion of October 5, 2007, that the Plaintiff raised the issue of the medical insurance contribution, for the second time in fifteen (15) years. While the Court notes that there is no bright line rule precluding the Plaintiff's claim, the Court finds that she has been inexcusably and unreasonably delayed in seeking relief and that by her inaction, the Defendant would be prejudiced by an Order enforcing these provisions today. The Court finds that the Plaintiff's request for reimbursement for orthodontic expenses, seven (7) years after they were incurred, is likewise unreasonably delayed as well.

We disagree with the motion judge's application of the laches doctrine to bar plaintiff's enforcement claim.

Laches is "the failure to assert a right within a reasonable time resulting in ...


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