Slep v. Slep, 134

• Decision Date: 08 February 1957
• Docket Number: No. 134,134
• Citation: 129 A.2d 317,43 N.J.Super. 538
• Parties: Sarah Jane SLEP, William Henry Slep, III, and John Harvey Slep, Plaintiffs, v. William Henry SLEP, Defendant. /548. . Chancery Division
• Court: New Jersey Superior Court

Page 538

43 N.J.Super. 538

129 A.2d 317

Sarah Jane SLEP, William Henry Slep, III, and John Harvey Slep, Plaintiffs, v. William Henry SLEP, Defendant.

No. 134/548.

Superior Court of New Jersey Chancery Division.

Feb. 8, 1957.

Ernest S. Glickman, Trenton, for plaintiffs.

Mitchell H. Cohen, Camden, and Ivan Michaelson Czap, Philadelphia, Pa. for defendant.

MARIANO, J.S.C.

Plaintiffs, by motion, seek to establish the amount of arrearages under an order fixing the amount of support and maintenance for two children. Defendant counters with an application for the discharge of said order and extinguishment of any arrearages and dismissal of the motion.

Plaintiffs secured an order in this cause on December 2, 1940, by the terms of which defendant was ordered to pay the sum of $40 per week for the support and maintenance of his wife and two children, William and John. William was born on July 17, 1928 and was about 12 years of age at the time of the making of the order. John was born on January 6, 1931 and was then about 10 years of age.

The parties were divorced on November 1, 1940.

On June 11, 1942 the above order was modified to eliminate therefrom defendant's former wife, and reduced the amount to be paid thereunder. The order reads as follows:

'* * * That the defendant, William Henry Slep, pay to the petitioner, or to her solicitors, the sum of $25.00 a week for the support and maintenance of the infant children in her custody, William Henry Slep, III, and John Harvey Slep, said payments to commence as of March 23, 1942.'

It was further provided in said order that out of the moneys realized from the sequestration proceedings, after paying the various items, the plaintiff's former attorney, J. Albert Homan, Esq., now deceased, pay out of the fund in his possession the moneys that were left over, to wit, $2,935.12, and

'to pay and deliver the balance of said fund to Edward J. Whelan, Clerk of this Court, and that said Clerk be directed to pay therefrom the weekly installments for the support and maintenance of the infant children, William Henry Slep, III, and John Harvey Slep, until such funds shall have been exhausted, or until the further order of this Court.'

This fund which was used for the support and maintenance of said children was soon exhausted. The last payment was made out of the above fund in April of 1944, since which time defendant has not made any payments in accordance with the provisions of the order. Plaintiffs failed to institute any proceedings of whatever nature to compel the defendant to abide by the provisions of the order until the month of June 1956.

With respect to the enforcement of the allowance for children, the methods available are the same as those for the enforcement of the orders for support of a wife.

Plaintiffs properly admit that the enforcement, collection, modification and extinguishment of arrearages of this nature and the court's control of past-due installments of support for children is an equitable remedy within the discretion of the court. Duffy v. Duffy, 19 N.J.Misc. 332, 19 A.2d 236 (Ch.1941); Madden v. Madden, 136 N.J.E. 132, 40 A.2d 611 (E. & A.1945); Federbush v. Federbush, 5 N.J.Super. 107, 68 A.2d 473 (App.Div. 1949), Liss v. Liss, 19 N.J.Super. 358, 88 A.2d 526 (App.Div. 1952), are authority for the general principle that under our divorce statute past-due installments of alimony and support for children do not vest as they become in arrears but are subject to the control of the court.

This court has always been most zealous in applying equitable principles to all phases of the marital relationship. The Legislature has committed this matter to the jurisdiction of the Superior Court, Chancery Division, to the end that equitable principles should be applied. The statutory language is N.J.S. 2A:34--23, N.J.S.A., formerly R.S. 2:50--37:

'Pending any matrimonial action brought in this state or elsewhere, or after judgment of divorce or maintenance, whether obtained in this state or elsewhere, the court may make such order as to the alimony or maintenance of the wife, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders. Upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with any such order, the court may award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just; or the performance of the said orders may be enforced by other ways according to the practice of the court. Orders so made may be revised and altered by the court from time to time as circumstances may require.'

It is difficult to conceive language more apt to express legislative intent that the court shall in all such cases do equity.

Orders for the care, custody, education and maintenance of children of divorced parents may be revised and altered by the court from time to time as circumstances may require. N.J.S. 2A:34--23, N.J.S.A. supra. See Kopak v. Polzer, 4 N.J. 327, 72 A.2d 869 (1950).

As there is no vested right to recover unpaid arrearages of alimony or maintenance, for it is always within the power of the court to modify its original order with retroactive effect, and thus to reduce the amount of unpaid arrearages or to...