NJSBA Family Law Section

 View Only
Cosmo Lex
Back to discussions
Expand all | Collapse all

Bank Account Levy - Child Support paid for Deceased Child

  • 1.  Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-12-2016 02:51 PM

    I have a client whose bank account was just levied for $4,500. 

    The child graduated college in 5/2014 and died in 1/2016.

    The mother is definitely not entitled to the money that has been levied, the child will be deemed emancipated effective 5/2014.

    Other than forwarding the appropriate documentation to the levy department in Trenton and the probation department in Bergen County charged with enforcing the obligation, do I have to file a formal appeal?  I don't have an order, I just have a Notice to Obligor of Contest Resolution and Right to Appeal, a state agency determination.

    Any help is appreciated.

    ------------------------------
    Jessica N. Mazur, Esq.
    Hoagland, Longo, Moran, Dunst & Doukas, LLP
    Partner and Chair of the Family Law Department
    Certified by the NJ Supreme Court as a Matrimonial Law Attorney
    R. 1:40 Court appointed Mediator
    Offices: 1704 Maxwell Drive, Wall, NJ
    40 Paterson Street, New Brunswick, NJ
    732-545-4717
    [email protected]
    ------------------------------


  • 2.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-12-2016 04:37 PM

    I don't think it's clear that the emancipation date is the date of graduation.  Child support is not retroactively modifiable.  An exception would be death of the child as there is clearly no longer a duty to support the child.    See Centanni v. Centanni, 408 N.J. Super. 78 (Ch.Div. 2008).  I would think Bergen County Probation and Trenton would accept a copy of the death certificate as an end date to child support accruing without filing a motion.  It wouldn't be up to them to decide some other emancipation date, imho.

    ------------------------------
    Mary Jane Leland Esq.
    Leland Law Firm, LLC
    Freehold NJ
    (732)409-7777

    Original Message


  • 3.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-12-2016 05:46 PM

    Hi Mary Jane,

    Hope all is well.  I was going to argue Bowens v. Bowens, 286 NJ Super 70 (App. Div. 1995), in support of retroactive emancipation, it has worked in the past.

    ------------------------------
    Jessica N. Mazur, Esq.
    Hoagland, Longo, Moran, Dunst & Doukas, LLP
    Partner and Chair of the Family Law Department
    Certified by the NJ Supreme Court as a Matrimonial Law Attorney
    Court Appointed Rule 1:40 Mediator
    Offices:
    1704 Maxwell Drive, Wall, NJ
    40 Paterson Street, New Brunswick, NJ
    732-545-4717
    [email protected]

    Original Message


  • 4.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-12-2016 05:52 PM

    The case law does permit retroactive termination if the child support was not due. See Prikril v. Prikril.

     

    Robert E. Goldstein, Esq.
    Drescher & Cheslow, P.A.

    610 Bridge Plaza Drive

    Manalapan, NJ 07726

    (732) 972-1600
    Fax (732) 972-0038
    E-mail: [email protected]
    Member, Middlesex County Bar Association, New Jersey Association for Justice and New Jersey State Bar Association

         

     

    IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any tax penalty or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

    Privileged Information: This message, together with any attachments, is intended only for the use of the individual or entity to which it is addressed and may contain information that is legally privileged, confidential and/or exempt from disclosure. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this message, or any attachment, is strictly prohibited. If you have received this message in error, please delete this message, along with any attachments, from your computer. Thank you    .

     




    Original Message


  • 5.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-12-2016 06:47 PM
    Jessica's right on this one.... zero question about it.

    Emancipation is an exception to the anti-retroactive modification statute. Not only does the ex not get the funds being held, she must repay any child support received after the child's emancipation.

    Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995)  - https://scholar.google.com/scholar_case?case=1112046012638607680 :

    N.J.S.A. 2A:17-56.23a was enacted to insure that ongoing support obligations that became due were paid. A change of circumstances, such as loss of a job, could, therefore, not be used as a basis to modify retroactively arrearages which already accrued under a child support order. Implicit, however, in the judicial obligation to enforce the terms of a child support order is the underlying premise that a duty to support exists. Where there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due. See, Thorson v. Thorson, 241 N.J. Super. 10, 11, 574 A.2d 53 (Ch.Div. 1989) (child support arrears eliminated despite N.J.S.A. 2A:17-56.23a because child support obligation terminated upon the emancipation of the child in accordance with the terms of the judgment of divorce). Thus, we cannot ascribe to this legislation, nor do we find any indication that the legislature so intended, to bar termination of child support retroactively to the time a child became emancipated.

    Cited many times by many cases -- https://scholar.google.com/scholar_case?about=11120460126386076804&q=mahoney+pennel+child+support+retroactive&hl=en&as_sdt=4,31

    I once had a judge hold that the obligor was not entitled to be repaid for post-emancipation support that was paid. The App Div reversal was the shortest I've ever seen (2 pages) - http://www.dpdlaw.com/Goldberg.pdf .

    To answer the question as to what needs to be done to ensure the funds are held until the court rules.... I don't know. Depending on what the numbers are, I'd suggest proposing a consent order saying the obligor will waive his right to seek a refund of any other post-emancipation child support she received?



    <x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

    </x-sigsep>



    Original Message


  • 6.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 12-30-2016 08:23 PM
    Back in September, there was a discussion as to whether N.J.S.A. 2A:17-56.23a prohibits a retroactive modification of child support when the issue is emancipation.

    I'd posted a two page App Div reversal from 2002, where the appellate division said the court can (if not "must") retroactively terminate CS and give a credit for post-emancipation child support ( www.http://dpdlaw.com/goldberg.pdf) . Someone had pointed out it was an old decision.

    The Appellate Division again affirmed today that "the statute does not embody or effectuate a legislative intent to bar termination of child support retroactively to the time a child became emancipated." Interestingly, it's also a two-page decision (meaning, I think, that this is an "of course" issue at this point) - http://www.dpdlaw.com/Doyle_RetroCS.pdf


    Please confirm that you received this email and referenced attachments (if any).

    - Dave

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222


    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1037-15T3

    DANE DOYLE,
    <x-tab>        </x-tab>Plaintiff-Appellant,
    v.
    CYNTHIA DOYLE,
    <x-tab>        </x-tab>Defendant-Respondent.
    ______________________________________________________
    Submitted December 13, 2016 – Decided December 29, 2016
    Before Judges Fisher and Leone.
    On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-139-00.
    Michael B. Blacker, attorney for appellant.
    Respondent has not filed a brief.
    PER CURIAM

    Plaintiff moved, on August 14, 2015, for an order both declaring the parties' twenty-two-year-old son emancipated and terminating plaintiff's child support obligation as of the son's graduation from college on April 24, 2015. In response to the motion, defendant agreed emancipation was appropriate but argued plaintiff was not entitled to retroactive relief. The judge held that retroactive modifications or terminations of child support obligations are not favored -- implicitly relying on N.J.S.A. 2A:17-56.23a -- and entered an order that terminated the child support obligation only as of the date the motion was filed. Plaintiff appeals solely on the question of whether the judge erred in refusing to terminate the support obligation as of the emancipation date.

    We reverse. N.J.S.A. 2A:17-56.23a prohibits retroactive modification of child support orders to a date earlier than the filing of the motion. But, as we held more than twenty years ago, the statute does not embody or effectuate a legislative intent to bar termination of child support retroactively to the time a child became emancipated. Mahoney v. Pennell, 285 N.J. Super. 636, 643 (App. Div. 1995).

    There being no dispute that the parties' son became emancipated upon his college graduation, we reverse and remand for entry of an order terminating child support as of April 24, 2015. We do not retain jurisdiction.

    http://www.dpdlaw.com/Doyle_RetroCS.pdf 



    Original Message


  • 7.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-12-2016 07:34 PM

    If the child should have been emancipated in the past, the court can deem them emancipated as of the past date, and arrears can be terminated as of that past date. I had a case like that, and ultimately on remand the trial court emancipated the adult child nunc pro tunc to a past date. Such a situation is an exception to 2A:17-56.23a which prohibits retroactive modification. In Mahoney v Pennell, 285 N.J. Super. 638 (App. Div. 1995), the Appellate Division Court ruled that N.J.S.A. 2A: 17-56.23 (a), which bars retroactive modification of child support, does not act as a bar to eliminate arrears which accrued after emancipation. 

     

    However, I tend to doubt that Probation would make that call on their own, if the way they treat challenges to tri-ennial reviews is any indication.

     

    Megan Oltman

    Oltman Law & Mediation

    475 Wall St

    Princeton, NJ 08540

    http://moltmanlaw.com

    (609) 947-0784

     

    This communication is privileged and confidential. If you are not the intended recipient please delete the email.

    A telephone or in person consultation does not mean I am retained as your attorney. I am only retained if we have both signed a retainer agreement, and I have received the agreed upon retainer deposit from you. Consultation sessions are payable at the time services are rendered.
     
    FEDERAL TAX NOTICE - IRS rules restrict tax advice by attorneys. I am not an accountant. No advice in this correspondence is intended to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer under federal tax laws. Please consult with an accountant for tax advice.
     
    I appreciate your referrals!

     




    Original Message


  • 8.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-12-2016 10:14 PM

    Absolutely.... probation wouldn?t do it on their own, you'd need a motion (or, I guess, you could "appeal" to a judge if you're before a HO arguing it and were told that retroactive relief couldn't be granted because of the statute in spite of emancipation being at issue).


    <x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

    </x-sigsep>



    Original Message


  • 9.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-21-2016 04:47 PM

    In case you wanted to know...

    My office sent a letter contesting the levy to the levy department in Trenton: 

    State of New Jersey, Dept. of Human Services

    Division of Family Development

    Office of Child Support Services—Administrative Enforcement Unit

    PO Box 709

    Trenton, NJ 08625

    FAX (609) 632-6428

    This resulted in a Notice of Contest being issued and the money was frozen so that it couldn't be released to the mother.

    In the meantime the mother signed a Certification in Support of Emancipation acknowledging that the child was emancipated upon her graduation from college.  The same form needed to be signed by my client.

    Probation then put into works an order being signed that will release the levy and will close the account based on the termination of support.

    I'll have to file a motion to get back any over payment, but we all know the likelihood of my client collecting on that is slim to none.

    Thanks to all who responded.

    ------------------------------
    Jessica N. Mazur, Esq.
    Hoagland, Longo, Moran, Dunst & Doukas, LLP
    Partner and Chair of the Family Law Department
    Certified by the NJ Supreme Court as a Matrimonial Law Attorney
    Court Appointed Rule 1:40 Mediator
    Offices:
    1704 Maxwell Drive, Wall, NJ
    40 Paterson Street, New Brunswick, NJ
    732-545-4717
    [email protected]

    Original Message


  • 10.  RE: Bank Account Levy - Child Support paid for Deceased Child

    Posted 09-21-2016 04:54 PM

    good job

     

    Alice M. Plastoris, Esq.

    Law Office of Alice M. Plastoris, Esq.

    82 Speedwell Avenue, 2nd Floor

    Morristown, NJ 07960

    Telephone No. (973) 538-7070

    Fax No. (973) 538-7088

    Email: [email protected]

     

    ***EMAIL CONFIDENTIALITY NOTICE*** The information contained in this electronic message may contain attorney-client privileged and confidential information intended only for the use of the owner of the email address listed as the recipient of this message.  If you are not the intended recipient of this email message, you are hereby notified that any disclosure dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this transmission in error, plesae notify the sender by return email, and by telephone at (973) 538-7070.

     




    Original Message