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  • 1.  Researching legislative history of child support statute

    Posted 07-24-2019 11:03 AM

    Hello  everyone, I  am handling a post-judgment motion involving emancipation of one child and a request to retroactively modify child support of the younger unemancipated child.  Our client received the notice from probation advising that the support obligation for the older child was terminating as of her 23rd birthday. He did not file a modification application right away as we were trying to work this out directly with the former wife.  His motion was filed about a year after he received the notice of termination.

     

    At the motion hearing, opposing counsel argued that the request to retroactively modify child support as of the date of emancipation is barred by the doctrine of laches as well as N.J.S.A. 2A: 17-56.67 and 2A: 17-56.68.   I argued that per Bowens v Bowens, the court can retroactively modify support. The judge punted and ordered opposing counsel and I to brief the legislative history of the statute.  I have tried researching the legislative history on Lexis but other than providing me with prior versions of the bill,  this turned out to be a dead end.   Any suggestions on other research vehicles I could utilize to try to find the legislative history?

     

    Many thanks!

     

     

    Christine Dolan
    Senior Litigation Attorney
    Cordell & Cordell - Mt. Laurel
    701 East Gate Drive, Suite 310, Mt. Laurel, NJ 08054

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  • 2.  RE: Researching legislative history of child support statute

    Posted 07-24-2019 01:50 PM

    Christine,

    Take a look at Harrington v. Harrington, Super. Ct. Chancery Div. Family Part-Ocean Cty. (L.R. Jones, J.S.C.) and Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999) (citing N.J.S.A. 2A:17-56.23a).

     

    And I have this snippet in my notes: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1037-15T3 DANE DOYLE,  Plaintiff-Appellant, v. CYNTHIA DOYLE,    Defendant-Respondent.Doyle case -  N.J.S.A. 2A:17-56.23a prohibits retroactive modification of child support orders to a date earlier than the filing of the motion. But, as we held more than twenty years ago, the statute does not embody or effectuate a legislative intent to bar termination of child support retroactively to the time a child became emancipated. Mahoney v. Pennell, 285 N.J. Super. 636, 643 (App. Div. 1995). There being no dispute that the parties' son became emancipated upon his college graduation, we reverse and remand for entry of an order terminating child support as of April 24, 2015.

     

    Tom King

     

    Thomas R. King, Esq

    O: 973-750-8348 Fax: 888-576-8997
    www.njfamily.law - www.njdivorce.law

    45 Broadway, 2nd floor, Denville NJ 07834

     

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  • 3.  RE: Researching legislative history of child support statute

    Posted 07-29-2019 11:55 AM
    Yes, we addressed this exact type of issue in Harrington v. Harrington. Do not have the cite readily available but the opinion was published I believe in 2016. This is not the Harrington "verbal settlement" case but a different Harrington case.



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  • 4.  RE: Researching legislative history of child support statute

    Posted 07-31-2019 02:24 PM
    Christine -
    <x-tab>        </x-tab>I think the issue has been addressed here in previous posts.
    <x-tab>        </x-tab>This might be helpful:


    _______________

    Greg -
    <x-tab>        </x-tab>There was a long discussion on this in February - there's two threads, one of which is entitled "RE: Family Law : New Child Support Statute as it relates to special needs" and has a lot of entries, cases, legislative history, etc. One of the messages from it is below. The whole discussion is on the NJSBA website archives.
    <x-tab>        </x-tab>In sum - the new statute didn't change the rebuttable presumption of emancipation from age 18. It's an administrative tool only for for probation - they'll close out the case at 19, but you can always apply earlier. An adult is still an adult at age 18 and presumed to be self-supporting and not entitled to child support. That presumption is overcome if the child is still a f/t student or disabled. At age 23, support only continues under "exceptional circumstances."
    <x-tab>        </x-tab>I'm actually filing an appeal this week of a ruling where a judge held that 23 was meaningless in the face of standard PSA language that support terminated upon the completion of college, and the "child" -- age 23 1/2 -- is going into year 6 and 85% of the way toward a degree. I'll keep you posted, but the consensus is pretty clear on the issue.

    David Perry Davis, Esq.
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    The understanding I have, based on other discussions here and watching the legislation as it evolved, is that the new statute was not intended to... -posted to the "Family Law Section" community


    Family Law

    The understanding I have, based on other discussions here and watching the legislation as it evolved, is that the new statute was not intended to make any substantive change to the law on emancipation -- the "sphere of influence" test remains, with a presumption of emancipation and support termination at 18, rebutted by the "child" being a full-time student or disabled (with SSA determination as to disability creating a strong presumption).

    My understanding of the purpose of the statute is to address that New Jersey didn't have a presumptive end date for support orders to be terminated. As a result, child support orders would remain open on the AOC's computers until someone got an order closing them. NJ had an inordinate amount of cases where a "child" was now 25 or even 30 and, because no one got an order to terminate support, the case remained open and, most often, arrears were accruing (with no one pursuing them since the parties knew the child was emancipated). Every State's funding from the Federal government is heavily influenced by its collection rate. New Jersey's is relatively poor at #16 in spite of our being the 2nd or 3rd wealthiest state with the 3rd or 4th lowest unemployment (anyone interested in the actual numbers / ranking, see chart as Exhibit Y with Motion for Summary Judgment on dpdlaw.com/kavadas.htm#4 ). There are other reasons. New Jersey hasn't reviewed and updated its enforcement procedures and policies since 1998 - although there's a bill pending to do so that we should all support - www.dpdlaw.com/cs.htm . States with the most recent revisions and "more carrot, less stick" job-training and similar programs have the highest collection rates, but our being the only state that left orders open forever was one big one. This is why the AOC went all-out in supporting the bill.

    With the new statute, cases will administratively close when a child turns 19 unless the custodial parent gets an order continuing it. But it wasn't intended to change either the emancipation age nor the criteria for an over-18 child to remain entitled to support.

    There's a lot of confusion about this. In the Turkeimer v. Burke case that Jenny Berse posted, there's a footnote saying "[FN2] ...N.J.S.A. 2A:17-56.67 was enacted to create an automatic termination of support when a child reaches the age of nineteen." (I'm aware of the FN as this was my case on appeal and I'd read the opinion before today). I don't think that's correct either (but it was dicta; irrelevant to the Appellate decision). If it would help anyone working on the issue, the level of "disability" that Judge Flynn found to be insufficient to continue support ("social anxiety disorder" and an IEP) is set out in the briefs on the case -- www.dpdlaw.com/appeals.htm#Burke .

    Neither do I think its correct to say that support now continues to 19 rather than "over 18 and beyond the sphere of influence" as per the below case law. The NJ Supreme Court's opinion in     Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) sets out 18 as the age a child is responsible for himself/herself. A lot of States have overturned laws requiring support beyond 18. At what point can a court no longer require support - what's the Constitutional limit? I'm about as far Left as anyone, but don't think a court can or should say "well, your neighbor (or parent or friend or whatever) needs some money to get by, so you'll be providing that." The Federal government (for purposes of continuing benefits for a "child") says a "child" is no longer a "child" when 18 and out of high school.

    Anyway, to answer the original question - I think the statute doesn't change the substantive law, just the procedure for closing cases. Over 18, the presumption of emancipation remains, and can be rebutted by (a) full time student status, or (b) disability, with SSA determination or lack thereof creating a strong presumption (btw, in another case I was involved in, the App Div just reversed a judge who under-appreciated the significance of an SSA determination when he said a party who had been declared disabled was also required to produce medical records or an expert - Corrello v. Corrello, scholar.google.com/... . App Div disagreed.).

    I hope someone is covering / discussing this issue at the symposium on Saturday.

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




    TAMMY McGARRIGAN, Plaintiff-Respondent,
    v.
    STEPHEN McGARRIGAN, Defendant-Appellant.

    No. A-1930-14T1.
    Superior Court of New Jersey, Appellate Division.
    Submitted August 23, 2016.
    Decided January 3, 2017.
    . . .
    Our analysis begins with the principle that "parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent." Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)). Children are emancipated when they have moved "beyond the sphere of influence and responsibility exercised by a parent and obtain[] an independent status of [their] own." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This fact-sensitive evaluation must include consideration of issues such as the "child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). See also Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).

    When a child has reached the age of eighteen, the child is presumed to be emancipated, N.J.S.A. 9:17B-3, but the presumption is not conclusive. Newburgh, supra, 88 N.J. at 543. Consequently, if a child has reached age eighteen, the person seeking to have parental support continue has the burden of overcoming the statutory presumption. Llewelyn v. Shewchuk, 440 N.J. Super. 207, 216 (App. Div. 2015); Filippone, supra, 304 N.J. Super. at 308.

    A well-established instance defeating a request for emancipation and requiring continued support occurs when a custodial parent proves the child remains a full-time student. Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972). When a dependent child is enrolled in a full-time educational program, child support must continue. See Gac v. Gac, 186 N.J. 535, 542 (2006) ("The Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation"); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (stating "while parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support").


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