September 11, 2012
ELLE PACK, F/K/A BECKERMAN, PLAINTIFF-APPELLANT,
AARON BECKERMAN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-22018-72K.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
Before Judges Simonelli and Hayden.
In this post-judgment matrimonial matter, plaintiff Elle Pack appeals from the Family Part order denying her motion to obtain alimony and child support from defendant Aaron Beckerman. For the reasons that follow, we affirm.
The parties were married in 1966 and had two children, born in 1971 and 1972. On January 9, 1974, plaintiff obtained a final judgment of divorce (FJD) by way of default. The trial judge awarded her all the assets of the marriage. The FJD also provided: "[P]laintiff shall not be precluded from seeking alimony or support for herself or the children of the marriage at a later date." According to plaintiff, defendant left the country in 1973 and she had been unable to locate him at that time. According to defendant, he left the country for a few months in 1973, he had used the same name his entire life, and always listed his name in the phone book wherever he resided. Sometime in 2010, plaintiff's son located defendant as a result of a "random" Google search.
On February 28, 2011, plaintiff, living in Florida, filed a motion for spousal and child support based upon the FJD. Defendant, living in Iowa, was served with the motion but did not answer on advice of an Iowa attorney. On March 18, 2011, the trial judge issued an order granting plaintiff alimony from July 1, 1973 to September 1, 1979, the date of plaintiff's second marriage, and awarding child support for each of the children up to the age of eighteen. She calculated total arrears of $144,950, and ordered that the amount be entered as a judgment and that defendant pay $1,000 per month on the arrears.
Upon receipt of the March 18, 2011 order, defendant retained a New Jersey attorney, who filed a motion for reconsideration. On May 27, 2011, the trial judge issued an order granting the motion for reconsideration and vacating the March 18, 2011 order based upon the doctrine of laches. The judge observed that when a party fails to assert a known right within a reasonable time, thereby causing prejudice to the other party, the right to seek enforcement may be denied by invoking the doctrine of laches. In finding that the doctrine of laches applied in this case, the judge stated as follows:
The Judgment of Divorce states that "the Plaintiff shall not be precluded from seeking alimony or support for herself or the children of the marriage at a later date. . . ." The Court has no record of Plaintiff motioning the Court for child support and alimony prior to 2011. Thirty-seven (37) years have elapsed between the Final Judgment of Divorce and the filing of the first post-judgment motion. Thirty-seven years is an extremely lengthy delay. With respect to alimony, it would be impossible for the Court to assess the standard of living to which Plaintiff was accustomed at the time of divorce. Furthermore, it is safe to assume that both parties' stations in life have changed significantly in the past thirty-seven years. Regarding child support, [one son] is now forty (40); [the other son] is thirty-eight (38). Defendant has had no contact with the children since 1974. The Court, based upon the evidence submitted, cannot ascertain if either party actually has unclean hands. This Court will not infer that [the judge who granted the FJD] intended that Plaintiff could have both child support and alimony set thirty-seven (37) years after the original Judgment of Divorce.
The judge also noted that plaintiff presented no evidence that she had been actively searching for defendant throughout the extended period in which the parties had no contact or that defendant had been attempting to hide. The judge found significant that no child support and alimony award had been entered in this case. She noted that in some cases the doctrine of laches has been held not to apply to a motion to enforce an award made before an extended delay in time occurred. This appeal followed.
We are satisfied from our review of the record and the arguments presented that the judge's order was supported by the evidence, and there is no sound reason to interfere with it. In our view, the trial judge properly exercised her discretion in entering the order, and plaintiff's arguments are without merit. R. 2:11-3(e)(1)(E). We add only the following comments.
In general, laches is the failure to assert a known right within a reasonable time, resulting in prejudice to the opposing side. L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). In determining whether to apply laches, "key factors are the length of delay, reasons for delay, and change of position by either party during the delay." Clarke v. Clarke, 359 N.J. Super. 562, 570 (App. Div. 2003). Moreover, delay alone is not sufficient, and the court must make an equitable balance of all the factors in applying laches. L.V., supra, 347 N.J. Super. at 39-40.
Applying the factors identified in Clarke, we share the judge's concern that the particularly lengthy delay of thirty-seven years is extraordinary. We also agree that the fact that plaintiff sought to enforce the right to apply for alimony and child support, rather than to enforce an order that awarded a specific amount based on the parties' financial positions at the time, aggravates the prejudicial impact of the delay. Moreover, plaintiff provides no evidence of any sustained efforts she made to find defendant during this protracted period to enforce this right. The parties are now in their sixties and the ability to provide financial information to demonstrate an appropriate amount of alimony or child support, if any, is hampered by the passage of time. We therefore agree with the judge's decision to apply the doctrine of laches in this case.
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