NJSBA Family Law Section

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  • 1.  Child Support/Retroactive modification

    Posted 03-12-2014 05:16 PM
    I am aware that NJSA 2A:17-56.23a clearly prohibits the retroactive modification of child support.  However, what about when the child support has been erroneously calculated from the starting gate?  In this instance a pro se relied on the child support guidelines calculated by the Plaintiff's attorney and incorporated into the property settlement agreement.  The child support guidelines utilized her annual income as weekly income and established a weekly child support amount that is well beyond what she can pay, and frankly well beyond what she is obligated to pay.  She did not understand that this number was incorrect at the time, and quickly fell into arrears, and is unable to pay. Thoughts on retro application of the correct child support number?  Feel free to message me off list.  Thanks in advance for any insight

        
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    [Marleen Horlacher, Esq.
    [[email protected]
    Lafayette, NJ

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  • 2.  RE:Child Support/Retroactive modification

    Posted 03-12-2014 05:33 PM
    There's a rule about correcting clerical errors in an order, and there is always the old standby, equity, depending on how long she waited to take action.

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    Felice Londa Esq.
    Elizabeth NJ
    (908) 353-5600

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    Original Message


  • 3.  RE:Child Support/Retroactive modification

    Posted 03-14-2014 06:10 PM
    Marleen -

    I just briefed this issue yesterday (see below).  I don't think I'll prevail under my facts because it's been several years and dad, although ripped off for $50K in total, earns a decent living (6 figures).  But client wanted to try and it's possible.  If your facts are different, you might prevail.  Let me know if the below is helpful.

    I think Rule 4:50-1 gets around the statute.  You're not trying to reduce a legitimate CS obligation retroactively, you're asserting that the original amount was incorrect.  The purpose of the stattute was to prevent reductions due to a litigant not moving forward when there's a change in circumstances, not to deprive the court of its equitable power to address an error.  It'd be interesting to take that argument up on appeal (but hopefully you'll prevail).

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    David Perry Davis, Esq.
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax: 609-737-3222
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            F.  Reopening the parties' judgment of divorce pursuant to Rule 4:50-1 and correcting defendant's child support obligation so as to align with the child support guidelines, and compelling plaintiff to repay all excess support received via a $100 per week reduction of defendant's alimony obligation;

            As to reopening the judgment and correcting child support

            19.  As the judgment indicates, I was pro se during our 2008 divorce.  I now know that the amount of child support I was paying was well over the guidelines.  I am very surprised that the Court put the divorce through without the guidelines being referenced and without a copy of them being attached, whether we were adhering to them or not (and especially as I was pro se).  I understand that, because the guidelines were never referenced, the resulting amount charged was erroneous and can be corrected at any time.

            20.  As a result of the incorrect child support provisions of the judgment, plaintiff has been overpaid $50,174.91.  There has never been any question as to our incomes nor the other factors necessary to calculate the correct guidelines amount.  A copy of the correct guidelines worksheet followed by a spreadsheet showing the calculations of the overpayment are attached as Exhibit C.

    The Law Office of
    David Perry Davis
    COUNSELLOR AT LAW
    112 West Franklin Ave
    Pennington NJ 08534
    (609) 737-2222
    Fax: (609) 737-3222
    E-mail: [email protected]
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    March 12, 2014

    Dear Judge X

            Please accept this letter brief in lieu of a formal brief in support of defendant's cross motion and in opposition to plaintiff's motion.

            II.  THE JUDGMENT'S FAILURE TO REFERENCE OR INCORPORATE THE CHILD SUPPORT GUIDELINES RENDERS IT VOID.  CHILD SUPPORT MUST BE RECALCULATED AND DEFENDANT MUST RECEIVE A CREDIT FOR OVERPAID SUPPORT.
            In Ordukaya v. Brown, 357 N.J.Super. 231 (App.Div. 2003), the Appellate Division reaffirmed the mandate of the New Jersey Court Rules that any order for child support must be either based on the Child Support Guidelines or must contain a knowing waiver of the guidelines.  In all cases, a copy of the guidelines must be attached to any order or judgment containing a provision for child support.  These general principles are made stronger in the matter before the court as defendant was pro se during the divorce proceedings.  His certification statement that he was unaware that child support was being established in an amount far in excess of the guidelines is therefore more credible than if he has been represented.
            Defendant attaches the correct guidelines (Exhibit C) along with a detailed analysis of his overpayment.  A judgment should be entered in defendant's favor for the $50,174.91 he overpaid in support.