Ordinarily the terms of a Marital Settlement Agreement are considered controlling upon an application to the court for enforcement of the Agreement.  However this doctrine is not absolute, as witnessed by the recent decision of Licata v. Licata decided by the New Jersey Appellate Division.  Briefly stated the issue in Licata involved enforcement of a provision in the parties’ Marital Settlement Agreement that child support would be recalculated upon the termination of limited duration alimony paid by Mr. Licata to Ms. Licata.  When the time came Ms. Licata waited three years after alimony ended before filing a motion to establish the adjusted amount of child support. The trial court recalculated child support but refused to give it retroactive application on the basis that it would be unfair to do so.  Ms. Licata appealed.

 On August 5, 2013, the Appellate Division affirmed the trial court’s decision that Ms. Licata had “slept on her rights” during which time Mr. Licata had relied on her non-action in planning and managing his own financial affairs.  This allowed the Court to invoke the equitable legal doctrine of laches which precludes delayed enforcement of a claim when the delay is prejudicial to the party against whom it is asserted.  Interestingly however Ms. Licata’s claim was not for retroactive funds from which she would personally benefit but which would be for the benefit of the parties’ children.  Stated differently, Mr. Licata paid less child support than would otherwise have been the case for over three years.
Is this equitable?  Is it fair to the children? To a large extent, the answer lies in the policy behind appeals in general and the wide discretion which appellate courts grant trial judges.   As Tom Petty once sang, “the waiting is the hardest part,” but for Ms. Licata the waiting was only the first hard part.  The lesson is not to become immobilized but to pursue your claims in a timely, vigorous manner.