Welser v. Welser, A--610

• Decision Date: 23 March 1959
• Docket Number: No. A--610,A--610
• Citation: 149 A.2d 814,54 N.J.Super. 555
• Parties: Mary WELSER, Plaintiff-Appellant, v. Frank WELSER, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 555

54 N.J.Super. 555

149 A.2d 814

Mary WELSER, Plaintiff-Appellant, v. Frank WELSER, Defendant-Respondent.

No. A--610.

Superior Court of New Jersey Appellate Division.

Argued March 2, 1959.

Decided March 23, 1959.

Robert J. Jerome, Newark, argued the cause for plaintiff-appellant (Carl & Wm. Abruzzese, Newark, attorneys).

Morris N. Hartman, Elizabeth, argued as amicus curiae.

Before Judges PRICE, SCHETTINO and GAULKIN.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

Appeal is by plaintiff-wife from an order of the Superior Court, Chancery Division, cancelling certain arrearages of support and maintenance and thus limiting her award of arrearages to $1,605, and further limiting the payment of the arrearages at the rate of $5 per week.

On April 16, 1946 a final decree of separate maintenance in favor of plaintiff was entered providing in part that defendant pay her the sum of $15 per week for her support and maintenance. Plaintiff was also allowed use of their apartment located in the premises owned by them as tenants by the entirety. Admittedly, defendant made the required payments until 1951.

On November 9, 1951 plaintiff filed a verified 'complaint' stating that defendant failed to make payments since February 12, 1951. This complaint was actually a petition. Plaintiff sought an accounting of the moneys due as defendant's share of the expenses for the premises owned by them and for the apartment, an adjudication that defendant be held in contempt for failure to pay and that 'plaintiff may have such further relief as may be equitable and just.' Plaintiff thereafter submitted an affidavit dated January 7, 1952 and on January 11, 1952 obtained an order requiring defendant to show cause in part:

'2) Why an account should not be taken of the monies due to the plaintiff from the defendant by the terms of said Final Decree for arrearages of support and maintenance at the rate of $15.00 per week as per the terms of said decree.

'3) Why an execution should not issue for the total amount thus found to be due from the defendant to this plaintiff, according to the practice of this court in such case made and provided.'

The return date of the order was adjourned several times because plaintiff was ill. On September 10, 1953, the following consent order was signed: 'that said order to show cause be and the same is hereby continued without date, but on 5 days' notice by either party to the other, the same may be restored to the list of motions.' In May 1957 defendant was served with plaintiff's notice of motion returnable May 24, 1957 seeking to restore the application of 1951 to the list. By a consent order, dated August 14, 1957, the cause was restored.

On the first hearing date, April 10, 1958, the trial court was notified that plaintiff had been committed to Essex County Overbrook Hospital as a person of unsound mind; that her son by another marriage had notified the superintendent of the hospital that the son would ask for the appointment of a guardian Ad litem to protect plaintiff in these proceedings, and that he would ask for the appointment of Ira A. Levy, Esquire, as such guardian. Mr. Levy, a counsellor at law of New Jersey, was appointed by the court.

Thereafter, at the hearing on April 15, 1958, upon the objection of defendant's attorney the trial court directed the submission of another order vacating the appointment of the guardian Ad litem. No such order was ever filed. At oral argument plaintiff's attorney stated that he believed none had been submitted.

We hold that the circumstances presented to the trial court on April 10, 1958 properly required the appointment of a guardian Ad litem. R.R. 4:30--2; 4:38--2. As the oral order vacating his appointment was not made formal, we direct Mr. Levy to continue as guardian Ad litem and to take all necessary steps to protect the interests of plaintiff. Olson v. Piazza, 92 N.J.Eq. 475, 477, 114 A. 330 (Ch.1921); Borough of East Paterson v. Karkus, 136 N.J.Eq. 286, 289, 41 A.2d 332 (Ch.1945). By this direction we intended to criticism of plaintiff's counsel. Cf. Silverstein v. Schneider, 110 N.J.L. 239, 242, 164 A. 480 (E. & A. 1933).

At the hearings defendant testified that he is an automobile mechanic taking home between $55 and $67 'If I work a full week,' and that his total weekly expenses amounted to $56.50. Defendant admitted and the court found that defendant had not made payments in compliance with the provisions of the final decree since February 12, 1951 to the date of the opinion, covering a period of 379 weeks, or a total of $5,685. The trial court dismissed plaintiff's claim seeking a property accounting, found defendant in arrears as stated above, allowed plaintiff arrearages of $1,605 for only the one year preceding the notice of motion returnable May 24, 1957, and extinguished arrears in the sum of $4,080 covering the previous years' defaults. The court further denied plaintiff the right to execution and allowed defendant to pay the arrearages at the rate of $5 per week. The judgment containing these determinations stated that the action was heard 'on complaint and order to show cause.' The judgment was filed on June 26, 1958, and on July 10, 1958 an abstract of the judgment was recorded in the civil law docket of the Superior Court Clerk's office pursuant to N.J.S. 2A:16--18, N.J.S.A.

Appeal was taken on July 23, 1958. Defendant did not file a brief. Because the court felt that questions of grave public policy might be involved, it appointed Morris N. Hartman, Esquire, a recognized expert in the matrimonial field, as Amicus curiae.

Plaintiff argues that, once the trial court determined that a certain amount of arrearages was due plaintiff and such determination was entered on the civil docket, the trial court had no authority to deny execution at once of the entire judgment.

We are not here considering the enforcement or execution of an Ab initio award of alimony or maintenance. Cf. Savoie v. Savoie, 26 N.J.Misc. 67, 69, 57 A.2d 467 (Ch.1947). Such a situation is covered by R.R. 4:74--1 which reads, in part, 'Process to enforce a judgment or order for the payment of money, other than alimony or maintenance awarded in a matrimonial action, * * * shall be a writ of execution except where the court otherwise orders * * *.' The rule denies the remedy of execution to the original award of alimony or maintenance.

In 10 N.J.Practice (Marriage, Divorce and Separation), Herr, § 439, p. 441, we note: 'The arrearages of an award of alimony possess the force of a judgment at law only in those cases where the court has certified the amount thereof.' In Duffy v. Duffy, 19 N.J.Misc. 332, 19 A.2d 236 (Ch.1941), a defaulting husband had been ordered to pay a certain weekly sum. He failed to do so during the last six years of his life and after his death plaintiff-wife sued the executors. The arrearages had never been reduced to judgment. The court properly denied the wife any relief. Judge Herr stated (19 N.J.Misc. at page 333, 19 A.2d at page 237):

'It is argued for complainant that the alleged arrearages under the decree became vested in her as they accrued, with the force and effect of a judgment for a fixed sum of money, and that the refusal of this court to make such orders as are requisite to enable complaint to have execution therefor amounts to an abuse of discretion. Were this the law the court would to that extent be powerless to apply equitable principles in the administration of its statutory jurisdiction over alimony and maintenance, and would be obliged to act as a mere administrative agency, impotent to prevent its processes from being employed in the furtherance of inequity and injustice. This court has always been most zealous in applying equitable principles to all phases of the marital relationship.'

Cf. Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810, 814 (1901).

A different situation, however, arises in those cases in which arrearages in alimony or support payments have been reduced to a sum certain and a judgment granted. The judgment may be entered upon the civil judgment docket pursuant to N.J.S. 2A:16--18, N.J.S.A., which provides in part:

'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, * * *.'

The following section, N.J.S. 2A:16--19, N.J.S.A., sets forth the scope of the lien resulting from the docketing of a judgment. The distinction mentioned above was clearly made and this statute applied in Joseph Harris & Sons, Inc. v. Van Loan, 23 N.J. 466, 471--472, 129 A.2d 571, 574 (1957):

'R.R. 4:74--1 merely implements these statutes procedurally. At the time of its enactment and promulgation the court was faced with the situation where in the future what was formerly a decree or order of the Chancery Division would be known as a judgment or order, similar terminology being applicable to both the Law and Chancery Divisions of the Superior Court. It thus became necessary to indicate in the rule 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 in this State upon which a writ of execution could issue as a matter of course. 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...