Don't have case law on retroactively modifying child support based on mistake. However, your client's situation is comparable to the line of cases that state that Anti-Retro support modification statute does not prohibit retroactive termination of child support to the date when child became emancipated [Mahoney v. Pennell, 285 NJS 638] or retroactive to date child died [Centanni v. Cemtanni, 408 NJS 78].
The idea is that the child support was not "legally due" subsequent to the triggering event (emancipation or death of child). Your case is little different because the parties had a PSA but as Andrew said, the amount of support noted in the parties' PSA was based on a mutual mistake. The triggering event was the miscalculation by Mom's attorney. Arguably on and after the date of the miscalculation, the overage was not legally due. The support that was legally due was the amount that would have resulted from an ACCURATE calculation.
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Lisa M. Radell, Esq.
207 South Main Street
Cape May Court House, NJ 08210
Phone (609) 465-9910
Fax (609) 465-9920
E-Mail
[email protected] -------------------------------------------
Original Message:
Sent: 06-04-2013 12:55
From: Terence Venturi
Subject: Modification of Child Support Arrears due to error of fact
Forgive me.... I should have indicated this sooner. Motion has been filed and is pending. Mom uncooperative and will probably file cross-motion for increase in current support. Unsure as to whether opposing counsel which is same attorney from divorce will acknowledge the mistake in calculations. Matter is further complicated by Mom collecting SSI or SSDI and 2 minor children collecting SSI or SSDI because of Mom's disability.
Looking for case law on the retroactive modification due to error despite statute barring retroactive modification of support beyond filing date of motion.
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Terence Venturi Esq.
(609)741-9553
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Original Message:
Sent: 06-04-2013 12:33
From: Terence Venturi
Subject: Modification of Child Support Arrears due to error of fact
I am looking for anything to help modify child support arrears due to error of fact.
Dad not represented at divorce, Mom was represented by counsel. Counsel used only 1 paystub from military to calculate child and spousal support which was incorporated into PSA. I now represent Dad and discovered that original paystub listed earnings for 1.5 months but calculations considered the earnings for 1 month. As result, earnings for support calculations were overstated and Dad simply cannot catch up because he is forced to live on less than 24% of earnings without payment on arrears.
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Terence Venturi Esq.
Cape May Court House NJ
(609)741-9553
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