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Adler v. Adler

February 6, 2009

AMY B. ADLER, PLAINTIFF-APPELLANT,
v.
CYRUS B. ADLER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FM-02-10268-72.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 22, 2009

Before Judges C.L. Miniman and Baxter.

This appeal requires us to decide whether the trial judge correctly determined that plaintiff Amy Adler's motion to collect from defendant Cyrus Adler unpaid alimony and child support and to enforce other financial obligations arising from the parties' August 8, 1973 Judgment of Divorce (JOD) was barred because plaintiff waited nearly thirty years to collect the amounts due. We conclude that the record amply supports the judge's findings of fact and conclusions of law. We affirm the February 15, 2008 order that denied plaintiff's motion to reconsider the earlier November 29, 2007 order that had denied plaintiff's motion to enforce litigant's rights.

I.

Pursuant to the JOD, defendant was required to pay plaintiff $235 per week as undifferentiated child support and alimony until the oldest child, a daughter, was emancipated, at which time the weekly support was to be reduced by $50 per week. That same $50 reduction was to occur when each of the two younger children became emancipated. The JOD also obligated defendant to pay: the mortgage, taxes, insurance and utilities on the marital home; all reasonable and necessary medical expenses for the children; health insurance premiums for plaintiff and the children; $3,500 to plaintiff on or before August 15, 1973; $6,231.85 for various unpaid bills arising during the marriage; college tuition for the parties' three children; and orthodontic treatment for the parties' two sons.

The only order ever entered in New Jersey enforcing the provisions of the JOD was a November 15, 1973 order that obligated defendant to "pay all arrearages for maintenance and support presently outstanding pursuant to the final judgment for divorce dated August 3, 1973, by paying the amount of $810 to the Bergen County Probation Department." The November 15, 1973 order also directed defendant to provide proof that he purchased the life and health insurance that were required by the JOD. Finally, the November 15, 1973 order directed defendant to supply plaintiff with an itemized list of the bills that he paid to satisfy the $6,231.85 owed to various creditors. The order specified that if defendant failed to comply with the terms of the order "by the date set out above," a warrant would issue for his arrest.*fn1

On June 10, 1975, the Bergen County Probation Department wrote to plaintiff advising her that defendant had paid a total of $7,830 in support and alimony in 1973 and that the arrears were $9,090 as of June 9, 1975. In that letter, probation advised her that it was closing its account "due to the direct payments" that were apparently being made at that time by defendant. Plaintiff took no action in response to the Probation Department's letter.

Although the record does not specify the exact date, it is clear that at some point between 1975 and 1978, defendant ceased paying the required child support and alimony. Consequently, in April 1978, plaintiff filed an enforcement motion in Maine that resulted in an April 28, 1978 order obligating defendant to pay plaintiff the sum of $150 per month in alimony and child support. An order entered a few months later in Delaware County, New York held defendant in contempt of court for failing to make support payments. The New York order authorized the issuance of an arrest warrant and directed that defendant "be held in confinement until the total amount of arrearage . . . has been paid." The record contains no evidence of a warrant ever issuing pursuant to that order. Plaintiff filed a second enforcement action in Maine that resulted in an undated order obligating defendant to pay $75 per month commencing November 1979.

Plaintiff made no further effort to collect the amounts due her until twenty-eight years later when she filed an action in the Commonwealth of Massachusetts in April 2007 under the Massachusetts Uniform Interstate Family Support Act. On May 15, 2007, the Massachusetts court dismissed plaintiff's complaint due to lack of in personam jurisdiction over defendant who then resided in New York and had no contacts with the Commonwealth of Massachusetts that would subject him to its jurisdiction.

The record also reveals that defendant was admitted to the Bar of New York in 1959 and, with the exception of a three-year period between 1981 and 1984 when he was suspended, defendant has remained a licensed attorney in that state.

During the fall of 2007, plaintiff filed the motion that is the subject of this appeal.*fn2 In her motion, plaintiff requested the entry of a judgment against defendant in the amount of $971,280, which she alleged consisted of: $466,962 in support arrears, interest of $18,768 at four percent per annum, and a doubling of that amount as a penalty.*fn3

At the motion hearing on November 16, 2007, Judge Ustas denied plaintiff's motion for enforcement of litigant's rights because of the twenty-eight year delay by ...


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