Alimony Waiver for Failure to Enforce
Payee may cause alimony waiver for failure to request enforcement.
A recent case decided on January 11, 2016, Lazar v. Lazar, dealt with the issue of possible alimony waiver for failure to enforce the provisions of the parties martial settlement agreement. On appeal from Bergen County, both parties represented by counsel, the plaintiff appealed an order denying his motion to enforce the provisions of the final judgment of divorce, requiring defendant to pay past due alimony totaling $126,000. Plaintiff moved to Israel in 2010 before finalization of the final judgment of divorce, and defendant never paid the ordered alimony sum, stating that plaintiff failed to provide a mailing address. In his pleadings filed in 2014, plaintiff explained that his enforcement request was delayed, as he was homeless and suffered physical and mental problems, which interfered with his ability to address the matter. The trial judge denied relief and concluded that plaintiff’s failure to provide an address to facilitate payment was a condition precedent to his receipt of alimony. Therefore, his “material violation” resulted in an alimony waiver of all past due payments.
The appellate panel rejected the judge’s factual findings drawn without benefit of a plenary hearing as well as his erroneous legal conclusions invoking the doctrine of waiver. Defendant’s argument that once contacted by plaintiff’s counsel to resume alimony in August 2013, defendant had no obligation to resume payment because plaintiff had failed to provide an address, had possibly cohabited or remarried, and defendant had been temporary unemployed was rejected as meritless. The panel also rejected the judge’s conclusion that forfeiture of the alimony award was mandated because of prejudice resulting to defendant. Nor did equitable estoppel or laches demand forfeiture of the alimony award. “Laches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other [party] so that it would be inequitable to enforce the right.” L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). “The core equitable concern in applying laches is whether a party has been harmed by the delay.” Knorr v. Smeal, 178 N.J. 169, 181 (2003) (emphasis added). The appellate court stated that no facts supported a finding that defendant was misled by the delay, to her detriment.
The appellate panel stated alimony is not intended to be a punishment or a reward, Mani v. Mani, 183 N.J. 70, 80 (2005), but exists only “to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.” Crews v. Crews, 164 N.J. 11, 16 (2000). The panel reversed the order and remanded the matter for a plenary hearing stating that a decision on plaintiff’s motion is solely based on the factual finding of whether defendant knew where to send alimony payments, the Family Part judge’s decision must be reversed because such a determination can only be made following a plenary hearing.
The question still remains how long before a forfeiture or an alimony waiver occurs if a spouse waits to enforce alimony?