NJSBA Family Law Section

 View Only
  • 1.  Child Support Arrears during Prison Term

    Posted 11-09-2015 03:54 PM

    Hi all!  My colleague asked me to post the following question:

    I have a client who was in prison for a few years, at which time his obligation was never frozen. He is in a substantial amount of arrears and is seeking a credit for the arrears that built up when he was in prison. I need some case law addressing this.

    ------------------------------
    Ann Fabrikant, Esq.
    East Brunswick, NJ
    (732) 659-4109
    ------------------------------


  • 2.  RE: Child Support Arrears during Prison Term

    Posted 11-09-2015 03:59 PM

    Look at:

     

    Topham-Rapanotti v. Gulli, 289 N.J. Super. 626 (Ch. Div. 1995)

    Bergen County Board of Services v. Steinhauer, 294 N.J. Super. 507 (Ch. Div. 1996)

    Halliwell v. Halliwell, 326 N.J. Super. 442 (App. Div. 1999)

    Kuron v. Hamilton, 331 N.J. Super. 561 (App. Div. 2000)

     

     






  • 3.  RE: Child Support Arrears during Prison Term

    Posted 11-09-2015 04:27 PM

    Ann,

    Your colleague's client's child support obligation is not tolled for time spent in prison.  The action that put him there, according to the caselaw, is voluntary, and therefore not child support suspending. The arrears payback will be scheduled.  Elizabeth Logan gave you the cases.

    Hanan

     


    hanan.gif

    Hanan M. Isaacs, Esq.

     

    t 609.683.7400   f 609.921.8982

    e [email protected]   w www.hananisaacs.com

    4499 Route 27, Kingston NJ

     

    Family Law

      Post New Message

     

    Child Support Arrears during Prison Term

    Image removed by sender. Ann Fabrikant, Esq

    Nov 9, 2015 3:54 PM

    Ann Fabrikant, Esq

    Hi all!  My colleague asked me to post the following question:

    I have a client who was in prison for a few years, at which time his obligation was never frozen. He is in a substantial amount of arrears and is seeking a credit for the arrears that built up when he was in prison. I need some case law addressing this.

    ------------------------------
    Ann Fabrikant, Esq.
    East Brunswick, NJ
    (732) 659-4109
    ------------------------------

      Reply to Group Online   View Thread   Recommend   Forward  



     

     

    You are subscribed to "Family Law" as [email protected]. To change your subscriptions, go to My Subscriptions. To unsubscribe from this community discussion, go to Unsubscribe.







  • 4.  RE: Child Support Arrears during Prison Term

    Posted 11-09-2015 04:48 PM

    And when he gets out he won't get a reduction if the only thing he can do is make license plates. In fact to get a job doing that he'd have to go back to prison. And that is what the cases call  "circuitous reasoning".

     






  • 5.  RE: Child Support Arrears during Prison Term

    Posted 11-09-2015 05:18 PM

    I have read with interest the discussion on changed circumstances as it applies to incarceration. I have read the cases and all of them except Kuron deal with only child support. My client does not seek to eliminate child support . He paid for college for 1 daughter who is now emancipated and intends to continue to pay for the other from assets he has. However, he seeks to eliminate or reduce alimony. His assets are diminishing from Restitution and child support. Even when he is released, he will earn substantially less than he did before the criminal activity. What are your thoughts on this alimony as opposed to child support issue?

     

     

     

     

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
    PAMELA MANDEL, ESQ.
    Mandel & Mandel
    <u1:street u2:st="on"><u1:address u2:st="on"><st1:street w:st="on"><st1:address w:st="on">45 Essex Street</st1:address></st1:street></u1:address></u1:street> | <u1:address u2:st="on"><u1:street u2:st="on"><st1:address w:st="on"><st1:street w:st="on">Suite</st1:street></st1:address></u1:street> 200</u1:address>

    <u1:place u2:st="on"><u1:city u2:st="on"><st1:place w:st="on"><st1:city w:st="on">Millburn</st1:city></st1:place></u1:city>, <u1:state u2:st="on"><st1:state w:st="on">NJ</st1:state></u1:state> <u1:postalcode u2:st="on"><st1:postalcode w:st="on">07041</st1:postalcode></u1:postalcode></u1:place>
    Phone: 973.376.3888| Fax: 973.376.3847

     

    Website:  http://www.mandelfirm.com

     

    Confidentiality Notice: This e-mail contains information from the law firm of Mandel & Mandel. It is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. Dissemination, distribution or copying of this e-mail or the information contained within it by anyone other than the intended recipient or an employee or agent responsible for delivering the message to the intended recipient is prohibited. If you have received this e-mail in error, please call Mandel & Mandel at 973-376-3888 and destroy the original message and all copies.

     






  • 6.  RE: Child Support Arrears during Prison Term

    Posted 11-09-2015 05:35 PM
    Curt's post nails the law on it. Here's updates on Halliwell to date: https://scholar.google.com/scholar?hl=en&as_sdt=4,31&q=haliwel+incarceration&scisbd=2

    Bottom line - court has wide discretion on how the arrears will be paid, but can't retroactively modify the obligation since no Halliwell motion was filed. In some states, it's part of the standard questions during intake into prison to inquire as to whether an inmate has a CS obligation and, if so, instructions on filing a motion are provided (and a referral to the prison "library" [jailhouse lawyers] for those who aren't literate). NJ has no such standard policy. As was pointed out in
    Steinhauer, the amount of federal funding received by NJ is related to the percentage of support collected. The higher NJ's collection %, the more funding it's eligible for. Almost every states that beats NJ in its collection rate has this policy and permits a suspension of the obligation during incarceration. It's in everyone's best interests not to have an inmate released with a crushing debt ... judicial discretion should be relief on post-release to determine arrears and payback. A bill was introduced a couple of years ago to ensure all inmates were notified of the need to file, but it never made it to law (I scratch my head sometimes asking ... Why not? Who opposed this? I assume it's because inmates have no money for lobbyists?).

    Also, in reference to the previous discussion on the related issue of the effect of incarceration on the establishment of support (as opposed to modification of it), I hadn't before noticed that both Hailliwell and

    Sanzari v. Shabazz

    (unpublished case citing Halliwell) make specific reference to the modification of a "pre-incarceration" order... if you need to argue Halliwell (et al) don't control when setting an initial obligation, that might help.



    <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>





  • 7.  RE: Child Support Arrears during Prison Term

    Posted 11-09-2015 04:33 PM

    Here's a prior post. Hope it helps:

    From Fall & Romanowski, New Jersey Family Law, Relationships Involving Children (GANN), beginning on page 723:

    g. Post-judgment incarceration or loss of professional license. "[L]ong term incarceration is a significant change of circumstances which prevents the obligor from earning money to pay child support." Bergen County v. Steinhauer, 294 N.J. Super. 507, 510 (Ch. Div. 1996). Nevertheless, incarceration typically generally results in the suspension of the support obligation or enforcement efforts instead of modification of the underlying award. See 39:1. In both Bergen County v. Steinhauer and Topham-Rapanotti v. Gulli, 289 N.J. Super. 626, 634 (Ch. Div. 1995), the Chancery Division suspended the incarcerated obligor's support obligation until his release. As discussed below, this approach was approved in Halliwell v. Halliwell, 326 N.J. Super. 442, 457-458 (App. Div. 1999).

    Page#724-¶2  
    In Topham-Rapanotti, the court suspended enforcement efforts but permitted arrears to continue to accrue, reasoning that the defendant's incarceration was a voluntary act that precluded relief from the child support obligation. In Steinhauer, however, the court suspended the obligation completely, effectively terminating the duty to pay support during the length of the obligor's incarceration. The Steinhauer court explained that it would be irrational to continue the support obligation while the incarcerated obligor was obviously unable to pay, given the effect of reduced collections on the State's ability to receive federal funding. The court stressed, however, that whether to discontinue the support obligation during the period of incarceration requires a fact-sensitive approach that takes into consideration the length of the obligor's sentence and the extent of his or her assets, if any.
    Page#724-¶3  
    The Appellate Division appeared to resolve the conflict in Halliwell v. Halliwell, 326 N.J. Super. at 457-458. There, the defendant, whose post-judgment incarceration was expected to last between four and fifteen years, sought to eliminate his support obligation through a modification request. Relying on Topham-Rapanotti, the trial court denied his request, reasoning that incarceration was a voluntary act that precluded entitlement to a reduction in the support award. Contrary to both Steinhauer and Topham-Rapanotti, however, the trial court refused to suspend the continued weekly support obligation. The Appellate Division affirmed the denial of the modification request, but reversed the court's refusal to suspend enforcement efforts, instead suggesting:
    Page#724-¶4  
    [I]n cases where the obligor has been sentenced to a lengthy period of incarceration and has no assets, [the better practice] would be to defer any action on the obligor's motion and to transfer the matter to the inactive calendar pending the obligor's release from the custodial sentence. Coincident with the obligor's release, [a request for modification] would be considered after each party filed an updated case information statement. Utilizing the child support guidelines then in effect, the court could easily enter an order retroactive to the date of the obligor's initial motion divisible between current support for the future and an arrearage payment attributable to the period of incarceration subsequent to the date of filing of the obligor's modification motion but based on the obligor's earning capacity.
    Page#724-¶5  
    In Kuron v. Hamilton, 331 N.J. Super. 561, 570 (App. Div. 2000), a different appellate panel disagreed with Halliwell and Topham-Rapanotti, rejecting their "per se" or "brightline" approach that voluntary conduct necessarily precludes a modification of support on the basis of changed circumstances. In that case, the defendant's income was reduced by nearly half after he was disbarred for misappropriating client funds. Although he was eventually incarcerated for the misappropriation, the request for downward modification that was before the court was based solely on his decreased income. Due to the voluntary nature of the circumstances leading to the income reduction, the trial court denied the request. Reversing, the Appellate Division explained:
    Page#725-¶2  
    the question cannot be decided by reflexively disallowing reduction whenever a diminution of income has resulted from voluntary conduct. Such an approach, ... "has the virtue of simplicity, but little else." ... [I]nstead, ... such a situation requires a variety of factors and circumstances to be taken into account. ... Among them are the motives of the payor, the timing of the conduct that brought about the reduction in income, the payor's ability to meet the mandated support obligations even after the reduction in income, and the ability of the payee to provide for himself or herself. ... Good faith in the context of changed circumstances is concerned less with the specific conduct that has led to the reduction in income and more with why the payor has adopted his or her course of action, ... and with the relationship of the payor's conduct and motives to the parties' positions in the matrimonial matter.
    Page#725-¶3  
    Kuron v. Hamilton, 331 N.J. Super. at 571-572 (quoting Deegan v. Deegan, 254 N.J. Super. 350, 356 (App. Div. 1992), other citations and quotations omitted).
    Page#725-¶4 What's New?
    Thus, although the obligor's volitional conduct resulted in his disbarment, the court recognized the relevance of motive, in particular, to avoid the child support obligation. The court therefore vacated the trial court's order denying modification on a per se basis and remanded for a full review of the current financial circumstances of each party.
    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585