NJSBA Family Law Section

My client's ex has for a few years failed to abide by the agreed to visitation schedule wherein he is to have the children every other weekend. He either just does not show up at all to pick them up with no notice or calls at the last minute advising he will not be taking the children for the weekend. There was a period of approximately 18 months where he did not see the children at all.

We have filed a motion to modify the support obligation based on the additional time the children are spending with the PPR. I know that there is a general proposition against a retroactive modification but was wondering if anyone knows of circumstances where at least some retroactivity can be had beyond just the date of filing of the motion.

Also, respondent has, in his opposition, filed a cross-motion seeking a reduction in his support obligation saying he has remarried and has had 2 more children. Although he has attached a new CIS and a tax return showing gross annual income of approx. $15k (he is self-employed), he does not provide any calculation or suggestion of what, based on his changed circumstances of having additional children, the support should be reduced to. Thoughts on arguments to deny the cross-motion?

Kevin M. Regan, Esq.

43 Maple Avenue

Morristown, New Jersey 07960

Ph. (973) 998-9880

Fax (973) 998-9872

www.kevinreganlaw.com

David, the language you're looking for is under Appendix IX-A(14)(j) and reads as follows:

"j. Non-Compliance with Parenting Plan - If an award is adjusted prospectively for shared-parenting time and the PAR, over a reasonable period, does not conform with the shared-parenting schedule included in a parenting plan or court order, the PPR may file an application with the Family Division requesting that the child support order be adjusted to reflect the level of PAR Time that is being exercised. A simple application for this purpose shall be made available to parents by the Family Division of the Superior Court to ensure that the affected children receive the financial support that is needed. If shared-parenting time was used to adjust the child support award and the court finds that the PAR, over a reasonable period, failed to comply with the shared-parenting schedule, the child support award shall be recalculated to reflect the actual PAR Time that is being exercised. Alternatively, the court may adjust the award to a zero shared-parenting level until the PAR shows that shared- parenting time is actually being exercised. Where possible, the court shall hear and decide applications to recalculate child support due to a parent's failure to comply with a shared-parenting schedule in a summary manner. The determination of the effective date of any modification shall be consistent with N.J.S.A. 2A:17-56.23a unless otherwise ordered by the court. If the court finds that a parent willfully failed to comply with a parenting time provision or entered into such a provision merely to reduce the child support award, it may award counsel fees to a PPR in addition to adjusting the amount of support as provided in this paragraph." (Emphasis added).

I do not know under what circumstances it would be appropriate for a Court to enter an order inconsistent with N.J.S.A. 2A:17-56.23a, although I would love to hear input from the other members of the listserv.

Also, the case law permitting retroactive increases rather than decreases was Keegan v. Keegan. I have used the following language before, notably without much success:

The Appellate Division has concluded that "the anti-retroactive support statute's applicability is limited to prevent retroactive modifications decreasing or vacating orders allocated for child support." Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999) (citing N.J.S.A. 2A:17-56.23a). "[T]he purpose of the statute was to remedy the loopholes of interstate child support enforcement laws in order to benefit children, not to eliminate any perceived unfairness as suggested by [the payor]. Nothing in the legislative history suggests that the law was enacted to protect 'parents' from retroactive modifications increasing support obligations where equitable." Id. at 137 (emphasis added). One circumstance in which retroactive increases have been deemed equitable occurred where the Court acted to prevent a party from benefiting from the failure to disclose a substantial increase in income. Lanza v. Lanza, 268 N.J. Super. 603, 607 (Ch. Div. 1993) ("Had defendant made a timely disclosure of his 1990 income, his child support would have been modified. His failure to do so cannot benefit him to the detriment of his children despite the statutory language to the contrary.").

Very truly yours,

Andrew

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ANDREW M. SHAW, ESQ.

Divorce & Family Law Attorney

DeTommaso Law Group, LLC

73 Grove Street

Somerville, NJ 08876

Phone: (908) 595-0340

Fax: (908) 595-0343

Email: [email protected]

www.DeTommasoLawGroup.com

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