ASSEMBLY, No. 80
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblyman KAVANAUGH
An Act concerning child support and amending P.L.1988, c.111.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1988, c.111 (C.2A:17-56.23a) is amended to read as follows:
1. Any payment or installment of an order for child support, or those portions of an order which are allocated for child support, whether ordered in this State or in another state, shall be fully enforceable and entitled to full faith and credit and shall be a judgment by operation of law on and after the date it is due. No payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of P.L.1993, c.45 (C.2A:17-56.23a), shall be retroactively modified by the court except as follows:
(a) An order for child support or portions of an order which are allocated for child support may be retroactively modified by the court 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 written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court.
(b) With respect to a period during which there was no pending application for modification, an order for child support or portions of an order which are allocated for child support may be retroactively modified by the court only if the result of not doing so would be unjust, due to a substantial change of physical custody of the child or other factors.
The non-modification provision of this section is intended to be curative and shall apply to all orders entered before, on and after the effective date of this act.
(cf: P.L.1993, c.45)
2. This act shall take effect immediately.
STATEMENT
This bill would modify the stringent provisions of current law, set out in N.J.S.A.2A:17-56.23a, which bar the retroactive modification of child support orders except for the period during which there is a pending court application for modification.
In Ohlhoff v. Ohlhoff, 246 N.J.Super. 1 (App. Div. 1991), the Appellate Division strictly construed the statute to hold that a non-custodial father's obligation to pay child support on behalf of his son could not be retroactively modified to reflect the fact that the child was no longer living with the custodial parent (his mother). Although the child had moved out of his mother's house at the age of 13 and had been living with his father for the past year and a half, the court refused to modify the father's child support arrearages that had accumulated during that time, holding that the statute prohibited such modification.
The sponsor believes that it was never the intent of the Legislature to prohibit retroactive modification of child support arrearages in cases like this one, where an obvious injustice would result. The Ohlhoff decision is also likely to lead to increased litigation, since non-custodial parents whose teen-age children decide to live with them are now forced to immediately file court motions in order to protect themselves from accumulating an irreducible amount of child support arrearages.
Consequently, this proposed legislation would amend N.J.S.A.2A:17-56.23a to allow the court to retroactively modify child support orders, with respect to a period during which there is no pending application for modification, but only if the result of not doing so would be unjust, due to a substantial change of physical custody of the child or other factors.
The courts have always had the authority, pursuant to Court Rule, to modify or void a judgment or order for equitable reasons, and to interpret new statutory mandates in accordance with pre-existing statutory principles. (See R.4:50, allowing relief of a final judgment or order for reasons of "mistake, inadvertence, excusable neglect . . . the judgment or order is void . . . the judgment or order has been satisfied." And see the recent Appellate Division decision in Mallamo v. Mallamo, A-134-93T2, decided Feb. 27, 1995, holding that, despite the literal words of N.J.S.A.2A:17-56.23a, a child support order can be retroactively modified when the order is pendente lite (temporary), issued before the trial of the case.) The proposed legislation would reiterate this judicial authority statutorily.
This bill embodies Recommendation 18 of the report of the Commission to Study the Law of Divorce, issued April 18, 1995.
Permits retroactive modification of child support under certain circumstances.