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Post-emancipation credit for child support

  • 1.  Post-emancipation credit for child support

    Posted 01-09-2016 06:34 PM
    I was informed via an off-list message that the link I gave to the Goldberg decision only gave up the first page of the Appellate Opinion.

    No, it was not a one-page reversal. No issue is that simple that it could be handled in one page..... No, in fact it was a two page reversal (LOL). I've uploaded the correct one - http://dpdlaw.com/goldberg.pdf . In essence, (1) the trial court applied the anti-retroactive modification statute when the issue was emancipation. (2) Trial court erred by denying application to reconsider that holding. (3) Appellate Division remanded for entry of an order that gives obligor credit for post-emancipation support paid.

    Here's the appellate brief, which contains the case law you said you were looking for: http://www.dpdlaw.com/Gold-App.pdf (it lost some formatting in being translated to PDF, but the meat is all there). The heart of it is: "I. THE TRIAL COURT ERRED IN APPLYING N.J.S.A. 2A:17-56.23a WHEN THE CHILD AT ISSUE WAS EMANCIPATED. THE EMANCIPATION OF A CHILD IS AN ABSOLUTE, JURISDICTIONAL BAR TO THE COLLECTION OF CHILD SUPPORT."

    As indicated, it's from 2002, but the law is still solid on it. There are a couple of unpublished appellate opinions that went the other way, but the facts were extreme - the obligor had a high income, the obligee was broke. The obligor waited two years (with no good excuse for doing so) and then wanted the obligee to repay a large amount (I think it was $200+ per week x two years) of support, and the Appellate Division affirmed that laches applied. But the general rule stands. I've had a couple of judges make a support termination based on emancipation effective only as of the filing, but not when it was done within a few months (i.e., filing in October to ensure a June High School graduate wasn't attending college).

    Here's the most recent (2015) unpublished decision on it: https://scholar.google.com/scholar_case?case=14516969572267850106 (reversing trial court determination to terminate child support only as of the filing of the motion when child was emancipated earlier). See also https://scholar.google.com/scholar_case?case=9797132287352359178 (trial court has authority to examine whether laches applies to nine year delay in seeking termination based on emancipation - footnote 6 of decision). In summary -- Unless the obligor makes a solid case for laches, termination of child support is ordinarily retroactive on emancipation; it's reversable error for a court not to examine laches when the issue comes up.


    Also - this issue was a bit tangential from the the original post regarding the new statute, so I'm posting it as a new thread.


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    David Perry Davis, Esq.
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    Jan 9, 2016 4:04 PM

    Shelly -

    Here's unpublished appeal I handled where trial court refusal to grant credit for post-emancipation arrears was reversed:  www.dpdlaw.com/goldberg.pdf 

    Case is old and unpublished, but cites to published case law.

    -DPD-

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