That is really what I thought, I did do a reconsideration motion and a letter brief. There are no extenuating circumstances and in fact the payee did not even appear or contest the motion so there really cannot be any finding of extenuating circumstances other than the general presumption that child support is presumed to be spent on the child, but that would not justify extenuating circumstances.
Thank you all for your responses and thoughts, was very helpful.
Gerri Duswalt
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Absent some kind of extreme extenuating circumstances justifying a support termination being effective only as of the date of the order or of filing a motion, it's been repeatedly and uniformly held that it would have to be retroactive to the emancipation event. There was a discussion about this here a couple of months ago (see below and http://community.njsba.com/familylawsection/viewdiscussions/viewthread?MessageKey=5880a16d-c4c6-422c-8d8f-8fceae92155b&CommunityKey=1cc4bd86-ad0b-47da-99bf-600051081518&tab=digestviewer&ssopc=1
At 09:51 AM 11/10/2017, you wrote:
File a Motion for Reconsideration with a letter brief arguing Mahoney. Lynn E. Staufenberg -posted to the "Family Law Section" community
Agreed 100%. This is one of those times when a recon motion is a better idea than an immediate appeal. Odds are good that the court would grant reconsideration.
Again - this assumes that, for instance, the custodial parent isn't poverty-stricken and repayment of the support wouldn't be a hardship, that there are no other kids on the order (see the new statute - an unallocated support order for more than on child remains in effect until a motion to modify it is filed) or any other reason to deviate. A trial court would get a lot of discretion on this, but there would have to be some basis for departing from the general rule that support termination on emancipation is retro to the emancipation event.
David Perry Davis, Esq.
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At 08:24 PM 12/30/2016, you wrote:
Back in September, there was a discussion as to whether N.J.S.A. 2A:17-56.23a prohibits a retroactive modification of child support when the issue... -posted to the "Family Law Section" community
Re: Bank Account Levy - Child Support paid for Deceased Child
Dec 30, 2016 8:23 PM
David Perry Davis, Esq
Back in September, there was a discussion as to whether N.J.S.A. 2A:17-56.23a prohibits a retroactive modification of child support when the issue is emancipation.
I'd posted a two page App Div reversal from 2002, where the appellate division said the court can (if not "must") retroactively terminate CS and give a credit for post-emancipation child support ( dpdlaw.com/goldberg.pdf) . Someone had pointed out it was an old decision.
The Appellate Division again affirmed today that "the statute does not embody or effectuate a legislative intent to bar termination of child support retroactively to the time a child became emancipated." Interestingly, it's also an extremely brief decision (meaning, I think, that this is an "of course" issue at this point) - www.dpdlaw.com/Doyle_RetroCS.pdf
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- Dave
David Perry Davis, Esq.
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1037-15T3
DANE DOYLE,
<x-tab> </x-tab>Plaintiff-Appellant,
v.
CYNTHIA DOYLE,
<x-tab> </x-tab>Defendant-Respondent.
______________________________________________________
Submitted December 13, 2016 Â Decided December 29, 2016
Before Judges Fisher and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-139-00.
Michael B. Blacker, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff moved, on August 14, 2015, for an order both declaring the parties' twenty-two-year-old son emancipated and terminating plaintiff's child support obligation as of the son's graduation from college on April 24, 2015. In response to the motion, defendant agreed emancipation was appropriate but argued plaintiff was not entitled to retroactive relief. The judge held that retroactive modifications or terminations of child support obligations are not favored -- implicitly relying on N.J.S.A. 2A:17-56.23a -- and entered an order that terminated the child support obligation only as of the date the motion was filed. Plaintiff appeals solely on the question of whether the judge erred in refusing to terminate the support obligation as of the emancipation date.
We reverse. 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. We do not retain jurisdiction.
www.dpdlaw.com/Doyle_RetroCS.pdf
Reply to Group Online View Thread Recommend Forward Jessica's right on this one.... zero question about it.
Emancipation is an exception to the anti-retroactive modification statute. Not only does the ex not get the funds being held, she must repay any child support received after the child's emancipation.
Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) - scholar.google.com/... :
N.J.S.A. 2A:17-56.23a was enacted to insure that ongoing support obligations that became due were paid. A change of circumstances, such as loss of a job, could, therefore, not be used as a basis to modify retroactively arrearages which already accrued under a child support order. Implicit, however, in the judicial obligation to enforce the terms of a child support order is the underlying premise that a duty to support exists. Where there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due. See, Thorson v. Thorson, 241 N.J. Super. 10, 11, 574 A.2d 53 (Ch.Div. 1989) (child support arrears eliminated despite N.J.S.A. 2A:17-56.23a because child support obligation terminated upon the emancipation of the child in accordance with the terms of the judgment of divorce). Thus, we cannot ascribe to this legislation, nor do we find any indication that the legislature so intended, to bar termination of child support retroactively to the time a child became emancipated.
Cited many times by many cases -- scholar.google.com/...
I once had a judge hold that the obligor was not entitled to be repaid for post-emancipation support that was paid. The App Div reversal was the shortest I've ever seen (2 pages) - www.dpdlaw.com/Goldberg.pdf .
To answer the question as to what needs to be done to ensure the funds are held until the court rules.... I don't know. Depending on what the numbers are, I'd suggest proposing a consent order saying the obligor will waive his right to seek a refund of any other post-emancipation child support she received?
David Perry Davis, Esq.
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