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Retroactive Unallocated Child Support Modification in Cases Involving More Than One Child

IMG_1930On August 9, 2016, the New Jersey Appellate Division Committee on Opinions approved for publication the Trial Court opinion of the Hon. L.R. Jones, J.S.C. in the case of Harrington-v-Harrington, in which the court analyzed the situation divorced families face when one of multiple children is emancipated and the effect that emancipation has on child support due on behalf of the unemancipated children. The Court held:

1) When parties have multiple children covered under an unallocated child support order, and a child becomes emancipated, such emancipation is a change of circumstance, for which either party may seek review and modification of the existing unallocated child support order;

2) In a situation where a parent seeks a retroactive modification of unallocated child support for multiple children based upon a child’s emancipation, while there are still other unemancipated children, the court has the discretion to retroactively modify, or not modify, child support back to the date of a child’s emancipation, depending upon certain equitable factors set forth in this opinion.

The Harringtons divorced on February 15, 2012 and at the time of the divorce “they had three unemancipated daughters: Jessica, (then a twenty-year-old college student), Ellen (then a seventeen-year-old high school student planning to attend college), and Susan (then a fifteen-year-old high school student).”  At the time of the divorce, the father agreed to pay $240 per week in unallocated child support.  Child support was “unallocated” meaning that the $240 per week was for all three children collectively, and not split 1/3 equally for each child.  This situation remained until September, 2014 when “the parties agreed to emancipate both Jessica and Ellen, effective September 1, and 19, 2014, respectively. Two orders were entered confirming same, thereby leaving one remaining child, Susan, unemancipated. At the time, Susan was starting her senior year of high school and was uncertain as to whether she was going to attend college following graduation.” Despite the change in circumstances, the father continued paying the $240 in weekly unallocated child support to the mother.

Finally, on February 11, 2016 the father filed a motion to emancipate Susan, who did not enroll in college the previous Fall of 2015, a fact that was known to all parties.  The father’s application was interesting in that he sought “a court order retroactively allocating the previously unallocated child support from $240 per week to $80 per week per child, back to September 2014, and then decreasing his unallocated child support obligation of $240 by two-thirds, or by $160 per week ($80 per week for each of the two emancipated children) to $80 per week, effective September 10, 2014. He then sought to emancipate Susan and terminate the final $80 per week obligation, retroactive to July 1, 2015, i.e., shortly after Susan’s high school graduation.”

Judge Jones’ opinion addresses situations regarding retroactive modification of child support when “there are two established legal principles that arguably lead to opposite conclusions. First, New Jersey has an anti-retroactivity statute [N.J.S.A. 2A:17-56.23a], which generally prohibits retroactive modification of an existing child support order to a date prior to the filing date of a motion for such relief, or forty-five days earlier upon written notice….Reciprocally, however, there is case law that stands for the proposition that the anti-retroactivity statute does not prevent a retroactive termination of child support when a child is retroactively emancipated. See Bowens v. Bowens, 286 N.J. Super. 70 (App. Div., 1995); Mahoney v Pennell, 285 N.J. Super. 638 (App. Div. 1995).  Judge Jones then differentiated the case at bar from Bowens, supra, 286 N.J. Super. at 73, where “the court permitted retroactive emancipation and termination of child support [but] did not have to address the issue of retroactively adjusting unallocated child support among multiple unemancipated children, as the parents only had one child, who was the sole subject of the child support obligation at issue.”  Judge Jones went on to point out that in Mahoney, supra, 285 N.J. Super. at 643, the court addressed retroactive modification but did not address what occurs when the child support is unallocated.

In response the complex factual scenario facing the court, Judge Jones ordered a trial in which the following factors would be considered:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non- custodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?

 Judge Jones did not limit the hearing to only those 10 factors and would be assessing whether the father slept on his rights and no longer had a claim for retroactive modification. Judge Jones explained the doctrine of “laches”, which is  “is an equitable doctrine that addresses 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 parent, 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 key ingredients to the applicability of laches are knowledge and delay by one party, coupled with a detrimental shift in position by the other party. Ibid. Factors considered in determining whether to apply laches include the length of the delay, and changing conditions of either or both parties during the delay. In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000).”

It is worth noting that aggrieved father in the above mentioned case did not retain counsel to protect his rights in his post-divorce judgment litigation. It likely that if the father in this case had representation, he would not have waited so long to bring his application for relief before the court. The attorneys at the Law Offices of James P. Yudes, P.C. are here to help litigants in their family law needs.