Law Lessons from JONATHAN CUSHMAN V. VICKI LOSASSO, App. Div., A-0692-08T3, September 24, 2009:

Picture by jpowers65

N.J.S.A. 2A:17-56.23a states in relevant part:

No payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

The statute prohibits retroactive modification of child support.

In Keegan v. Keegan, 326 N.J. Super. 289, 294 (App. Div. 1999), the court treated college expenses as potentially covered by the non-modification statute but held that the statute only prohibits retroactive reduction, not increase, of child support. Day care expenses are analogous to college expenses but even more clearly part of the child support calculation. Their payment is necessary to allow the parent with primary residential custody to earn income that will determine her financial obligation to support the child. Net work-related child care expenses were explicitly part of the total child support amount the supporting spouse pays.

In Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995), the court held that child support arrearages could be reduced by retroactive application of a credit for the time period following a judicial determination of the child’s emancipation despite the provisions of N.J.S.A. 2A:17-56.23a. Mahoney v. Pennell, supra, 285 N.J. Super. at 643. The court’s reasoning was that the statute prohibits modification of child support for changed circumstances but that emancipation is different from changed circumstances because it eliminates the child support obligation entirely. Ibid.

That reasoning does not apply to day care expenses. A child’s starting school is a change of circumstances affecting the amount of child support. It is not a complete termination of the child support obligation. Other changed circumstances, such as a change in a parent’s income, also could be pinpointed to a particular date in the past. See ibid. (“A change of circumstances, such as loss of a job, could . . . not be used as a basis to modify retroactively arrearages which already accrued under a child support order.”). Retroactive reduction of the child support obligation, or a credit against arrearages, for such changed circumstances would render the non-modification statute ineffective.

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Technorati Tags: child-support-modification, and easy technorati tags for wordpress plugin