Biddle v. Biddle

• Decision Date: 28 January 1977
• Citation: 375 A.2d 285,150 N.J.Super. 185
• Parties: Patricia L. BIDDLE, Plaintiff, v. Ralph T. BIDDLE, Defendant.
• Court: New Jersey Superior Court

Page 185

150 N.J.Super. 185

375 A.2d 285

Patricia L. BIDDLE, Plaintiff, v. Ralph T. BIDDLE, Defendant.

Superior Court of New Jersey, Chancery Division.

Jan. 28, 1977.

Gregory V. Sharkey, Lakewood, for plaintiff.

Roger A. Clapp, Red Bank, for defendant.

ARNONE, J. S. C.

The issue presented here is whether an order in a matrimonial matter which has been reduced to a judgment can be the basis of a motion in aid of litigant's rights under R. 1:10-5.

Defendant argues that it cannot. He states that once a plaintiff/creditor has chosen to reduce a Chancery Division order to a judgment he has chosen his remedy and cannot thereafter seek that court's aid in enforcing his rights under the order. Plaintiff in that situation has a plain, adequate and complete remedy at law he can enforce the judgment by executing upon it.

Defendant argues that this is especially true here where the amount due under the judgment is for past-due legal fees. Here the failure to enforce the judgment under R. 1:10-5 will not result in the creditor becoming a ward of the State, as would possibly be the case where the judgment is for amounts due for support or alimony. He argues that if the court grants relief, it will become a mere collection agency for legal fees in a matrimonial action.

N.J.S.A. 2A:16-18 provides:

Every judgment, or order for the payment of money, entered in the superior court, chancery division, from the time of its entry upon the civil docket, and every decree or order for the payment of money, of the former court of chancery, from the time it was signed, shall have the force, operation and effect of a judgment of the superior court, law division, and execution may issue thereon as in other cases, subject, however, to the provisions of section 2A:16-19 of this title.

N.J.S.A. 2A:16-19 provides:

No such judgment or order of the superior court, chancery division, and no such decree or order of the former court of chancery, shall, as against a person not a party thereto, become a lien or bind any real estate other than that specifically mentioned and described in the judgment, order or decree, or in the complaint, bill of complaint or petition, upon which the same is founded unless such judgment, order or decree is one for the payment of money from 1 person to another and

(1) Unless and until an abstract of such judgment, order or decree shall be entered upon the civil judgment and order docket of the superior court, upon the written request of 1 of the parties thereof, in the manner provided by law for the entry of abstracts of judgments upon said dockets, or

(2) Unless a statement or abstract of such decree was recorded in the office of the former supreme court prior to September 15, 1948, in accordance with law.

However, R. 4:59-1(a) provides in pertinent part:

(a) In General. Process to enforce a judgment or order for the payment of money, other than alimony or maintenance awarded in a matrimonial action, and process to collect costs allowed by a judgment or order, shall be a writ of execution, except if the court otherwise orders or if in the case of a capias ad satisfaciendum the law otherwise provides.

R. 4:59-1(a) would seem to indicate on its face that execution could never be the appropriate process to enforce an order for alimony or maintenance issued in an alimony action.

However, the Supreme Court in Joseph Harris & Sons, Inc. v. Van Loan, 23 N.J. 466, 471, 129 A.2d 571 (1957), had before it the interpretation of R.R. 4:74-1, predecessor to the present R. 4:59-1(a). R.R. 4:74-1 stated, in pertinent part, that a writ of execution is the proper process to enforce a judgment or order for the "payment of money, other than alimony or maintenance awarded in a matrimonial action." (Emphasis supplied). The court there found that for a century or more the practice in this State has required that past-due payments of alimony or maintenance be established by a formal order or decree of the court as past-due and owing, and when that was done such decree could be docketed and a lien established in accordance with the provisions of N.J.S.A. 2A:16-19.

Therefore R. 4:59-1 merely implements the statute procedurally. The rule indicates that an order or judgment for the payment of alimony or maintenance as an annuity was not such an order or judgment under the established practice upon which a writ of execution could issue as a matter of course. The court in Joseph Harris & Sons Inc. stated that

Further, as a matter of practice a judgment for past due alimony is a final resort in most cases. Enforcement of an order for alimony and maintenance past due is usually by a proceeding in contempt, and other less drastic steps are taken before a judgment is entered upon which execution can be issued. But once a judgment or order is entered establishing a fixed sum of money due for past due payments of alimony and maintenance such judgment or order insofar as it adjudges money to be due from the defendant to the plaintiff resembles a judgment at law in the pecuniary obligations it imposes and makes them equivalent to such judgments in their effects under the statute. (23 N.J. at 471, 129 A.2d at 574)

Thus, R. 4:59-1 imposes no barrier to the issuance of a writ of execution to enforce an order for the payment of alimony or maintenance in a matrimonial action. It only denies the remedy of execution to the original award of alimony or maintenance.

The question then arises once the order has been reduced to a judgment and the writ is issued if the entire amount of the judgment is not satisfied by execution upon the writ, can the creditor resort to the court under R. 1:10-5 for the amount of the deficiency.

It should first be pointed out that the first and most obvious consequence of a judgment is that it establishes an indisputable obligation and confers upon the successful party the right to issue execution or other process of the court for its enforcement. Yet this is not an integral part of the judgment. The judgment is merely the affirmation of liability. The right to use the process of the court for its enforcement is a consequence the law attaches to it. West Jersey Title Co. v. Industrial Trust Co., 27 N.J. 144, 150, 141 A.2d 782 (1958).

In a matrimonial action, the order is simply affirmation that one party is bound or has agreed to pay to the other party a certain amount during a specified time period. The agreement to pay legal fees thus judicially established may be specifically enforced in a court of equity. Among the original and undoubted powers of a court of equity...