Summary
In Herman v. Herman, 17 N.J. Misc. 127, 5 A.2d 768, the New Jersey court said: "If the wife unduly delays or neglects to apply for alimony or to seek collection of arrearages under an existing alimony order, the court will be inclined to find in her delay a waiver of evidence of payment.
Summary of this case from Pence v. PenceOpinion
03-08-1939
HERMAN v. HERMAN.
Abe J. David, of Elizabeth, for petitioner.
Syllabus by the Court.
1. An order or decree will not be entered nunc pro tunc when to do so would disturb a status or impair a right.
2. Where the circumstances of the parties have changed substantially in the meantime, the court will not enter an order for alimony nunc pro tunc on the basis of proofs taken before such change of circumstances occurred.
3. The report of a special master, to whom it was referred to take evidence and to report to the court how much in his judgment should be allowed and fixed as alimony, is a recommendation only and not in itself an adjudication by the court.
4. In a proceeding for alimony, where petitioner has delayed to press for an adjudication for approximately eight years, during which time there has been a substantial change in the circumstances of the parties, the court will decline to enter an order for alimony nunc pro tunc, and will regard the proceeding as having been abandoned.
Suit for divorce by Rose J. Herman against Solomon Herman, wherein the complainant obtained a final decree for divorce. On application by the complainant for an order fixing and ordering payment of alimony nunc pro tunc as of May 5, 1931, the date of the filing of a special master's report in a proceeding for alimony instituted after entry of final decree for divorce, in which report the master recommended that alimony be fixed at $15 a week. Following the filing of the master's report no further steps were taken, and the circumstances of the parties have changed substantially in the meantime.
Application denied.
Abe J. David, of Elizabeth, for petitioner.
No appearance for respondent.
HERR, Advisory Master.
Petitioner secured her final decree for divorce from the bond of matrimony in this suit on September 16, 1929. No order for alimony was made pending the suit or subsequent to the decree. Application for alimony was not made until the year 1931, and it was then referred to a special master to take proofs and report to the court whether in his judgment alimony should be ordered and if so in what sum. The master heard evidence and reported on May 15, 1931 that in his opinion the defendant should be ordered to pay alimony in the sum of $15 per week. No exceptions were filed to this report, nor was any order entered thereon. No further proceedings were taken by either party in the cause until the present application.
Defendant has been paying moneys to petitioner from time to time since the entry of the decree, for her support and maintenance, but these payments have fallen far short of the allowance recommended by the master. It is petitioner's admitted purpose in pressing her present application to establish the arrearages as a debt against defendant, upon which she may take out process of execution.
There is no doubt as to the power of the Chancellor to make an order or decree nunc pro tunc even after a great interval of time has elapsed. Ruckman v. Decker, 27 N.J.Eq. 244; Hoyt v. Hoyt, 98N.J.Eq. 426, 131 A. 127. But the power will not be exercised when to do so would disturb a status or impair a right, particularly where as in the instant case the delay has been due to the neglect of the petitioner. Rinehart v. Rinehart, 91 N.J.Eq. 354, 356, 110 A. 29. On the contrary, the only legitimate purpose and justification for entering an order or decree nunc pro tunc is to preclude the intervention of subsequent rights and equities from disturbing a status or impairing a right. In re Beam, 93 N.J.Eq. 593, 597, 117 A. 613.
To grant petitioner's application would clearly violate this condition. Although defendant's common law obligation to support petitioner still persists, it has remained unliquidated as to amount. Until the court orders periodic payments in the form of alimony no debt can arise in petitioner's favor. To order payment of alimony nunc pro tunc would be to create a debt retroactively, which if not inconsistent with due process of law would at least be contrary to settled principles. Defendant's status remains one of immunity from the obligation to pay a fixed allowance for petitioner's support until the court orders it.
Alimony is always subject to readjustment upon a substantial change in the circumstances of the parties. In this case, had an order for the payment of alimony been entered promptly upon the filing of the master's report, a subsequent change of circumstances (which concededly has occurred) would presumably have led to a reduction in the amount of alimony as originally fixed, on defendant's motion. To enter an order nunc pro tunc for the allowance recommended by the master would be to foreclose the defendant ex post facto of his right to have applied for such modification.
Petitioner's application is predicated upon a misconception of the nature of alimony. Alimony is the periodic allowance from the husband's income payable to the wife (or to the ex-wife who has divorced him) for her maintenance, as fixed from time to time by the court according to the varying circumstances of the parties. The allowance will not ordinarily be ordered out of the husband's estate, nor retrospectively. Even where arrearages have accumulated under a subsisting alimony order the court is loath to enforce collection beyond one year. De Blaquiere v. De Blaquiere, 3 Hagg.Ecc. 322, 162 Eng.Repr. 1173. Such arrearages have the force of a judgment at law only when the Chancellor certifies the amount thereof. Rooney v. Rooney, 102 N.J.L. 551, 133 A. 752. If the wife unduly delays or neglects to apply for alimony or to seek collection of arrearages under an existing alimony order the court will be inclined to find in her delay a waiver or evidence of payment. See Wilson v. Wilson, 181 A. 257, 14 N.J.Misc. 33. Alimony is ordered to the end that the wife may presently be maintained. If she continues to maintain herself for months or years without such provision her past needs will not be considered; it is sufficient that she has subsisted in the meantime. To inquire into the varying past circumstances of the parties in order to determine what the amount of alimony should have been from time to time, and to hold the husband in default for not having paid what the court may adjudge that he ought to have paid, would be to create a debt against the husband's estate rather than a charge against his income.
Moreover, the making of an order is itself only a ministerial act, and must be based upon a previous adjudication by the court of the subject matter embraced within its operation. In this case there never has been an adjudication by the court respecting alimony. The master's report was a recommendation only, not an adjudication by the court. 2 Dan.Ch.P. & P. (6th Am. Ed.) 1289; Holmes v. Holmes, 18 N.J.Eq. 141; MacDonnell v. Vitille, 111 N.J.Eq. 502, 508, 162 A. 738. Because the circumstances of the parties have changed substantially since the master's report was filed, it is obvious that no adjudication should now be made upon the basis of the proofs taken before him.
For the reason that the proceeding for alimony in this case has never been brought to an adjudication, but has been permitted to lie dormant for almost eight years, it will be considered as having been abandoned. If an order for alimony is to be made it must be based upon a new petition and fresh proofs, and will not be permitted retroactive effect.