New Jersey Family Law Blog

A parent should not benefit from overpayment of child support following death of a child

Image by chascarper via Flickr

It is always a tragedy when a child dies early as a result of illness or an accident. Parents are distraught with grief and the last thing anyone thinks about is child support.  Eventually, if child support is being paid then it has to be addressed.  Intuitively, if the child is no longer in need of support, then the child support should end; death is an emancipating event.

However, where child support is being paid for several children and a motion is made to recalculate it, is the new child support amount effective from the date the motion is filed (i.e. any overpayment till then is lost) or is it backdated to the date the child passed away with the payor receiving a credit or reimbursement for any overpayment ?

The June 8, 2009 published trial court opinion in Centanni v Centanni addressed this issue (this Monmouth county decision has no precedential value and is not binding on any other court, but nonetheless offers legal insight).

In Centanni, the mother argued that the New Jersey Anti-Retroactivity Statute, N.J.S.A. 2A:17-56.23(a) barred the recalculation of child support back to the date of death of one of the parties' two children, but instead any reduction of child support should only be effective from the date the father filed his motion for recalculation, a date several months later.

Citing Mahoney v. Pennell, 285 N.J. Super. 638 (App Div. 1995), the court held that the anti-retroactivity statute does not bar the modification of child support back to the date of an emancipating event.  Judge McGann in his opinion noted that for the mother to keep any overpayment of child support would be inequitable.

"To bar retroactive modification would be to punish financially an obligor who has thoughtfully, and in good faith, allowed an appropriate period of grieving and healing to take place before seeking redress in court.  Consequently, a bar on retroactive modifications would encourage an inopportunely-timed filing while families are still in the midst of coping with the tragedy."

 

A plenary hearing should be held where there are factual disputes as to whether a child is emancipated

In the recent unpublished appellate opinion in Novy v. Novy, the husband and wife filed a consent order with the Court agreeing that their daughter, Rachel should be declared emancipated, and that the father’s child support obligation, obligation to pay post-high school education and maintain medical insurance should be terminated. Rachel disagreed, and filed a motion with the Court to vacate the order that declared her emancipated. Since child support is a right that belongs to the child, it may not be "defeated merely because both parents are united in their determination to declare the child emancipated." Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).

In New Jersey, to determine whether a child is emancipated, “the essential inquiry is whether the child has moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of her own.” Fillippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995). Previous posts on this blog have commented on the fact that emancipation cases can be very fact-sensitive. (When is a child emancipated in NJ?).

In Novy, the parties disputed whether the daughter was a full-time student at community college and whether she had complied with previous orders that required her to maintain a certain number of credits per semester. Additionally, she no longer lived with her mother, but claimed her mother was paying for her rent and that she moved out due to her mother’s psychiatric problems. There were also issues raised about Rachel's mental health.

Not an easy case for a motion judge to decide based on conflicting certifications. The appellate division concluded that a hearing should have been held to resolve the contested factual disputes and remanded the case back to the trial court for this to take place.

Father overpays $95,508 in child support by late emancipation of children

If your child qualifies for emancipation and you are paying child support through probation, then you need to bring a timely motion to emancipate, as this blog has previously commented on.

The recent unpublished appellate opinion in Petruzzi, highlights what may happen if this does not occur. In this case, the father estimated he overpaid $95,508 by continuing to pay $210/week in chlld support after his two sons graduated from high school in 2001 & 2002.

At the time of the motion hearing in 2007 he claimed that he had been misadvised by the probation department on the emancipation process and believed he needed his ex-wife to initiate the process.

The motion judge ruled that the date of emancipation of the elder son should be the date he died in 2005, and not the date he graduated from high school in 2001, even though he did not pursue any post-secondary education. The younger son, who graduated from high school in 2002 and who had only pursued further education for a brief period of time was emancipated as of April 26, 2007, the filing date of the motion. Applying the New Jersey anti-retroactivity statute, N.J.S.A. 2A:17-56.23(a), the Judge further ruled that she was barred from reviewing the father’s support obligation between the 2005 and 2007 emancipation dates.

The appellate division reversed this decision concluding that the trial judge improperly applied the child support anti-retroactivity statute, concluding that “the statute imposes no bar to the termination of a child support obligation retroactive to the emancipation date.” As the appellate opinion in Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) states:

"Where there is no longer a duty of support by virtue of a declaration of a judicial declaration of emancipation, no child support can become due. Thus we cannot ascribe to this legislation [the NJ Antii-Retroactivity Statute], 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."

The appellate division also queried whether emancipation had in fact occurred earlier than the 2005 and 2007 dates. The case was remanded back to the trial court. Whether the Father will ever see any of the money he overpaid is another question.

The interplay between emancipation and college expenses in New Jersey

There is no formal age at which emancipation occurs in New Jersey, although there is a presumption that this takes place at the age of 18 in the absence of any reason for delay such as a child’s disability or participation in further education. Graduation from college is an emancipating event even if a child goes on to graduate study.

As a general rule in New Jersey, parents are not called upon to contribute to the support of his or her child post emancipation. This is the reason why emancipation motions are so frequently brought, as parents seek to be formally relieved of their support obligations. (Note: there is no automatic emancipation in New Jersey, a court order must be obtained).

However, an exception that parents are relieved of any support obligation post-emancipation exists with regards to college expenses. “[R]egardless of the fact [a] child may have been formally declared emancipated, the parents may in a given case be called upon to contribute to the college education of such child.” Sakovits v. Sakovits, 178 N.J. Super. 623, 631 (Ch. Div. 1981)(parents may be required to contribute to college education even if a child is emancipated between finishing high school and attending college).

The same possibility of post-emancipation support for college expenses can apply where there is a break of continuity in college attendance. In Keegan, the parties’ daughter took time out from college to hold some temporary jobs, but this did not relieve the parents from their college support obligations nor did it lead to her emancipation. Keegan v. Keegan, 326 N.J. Super. 289, 294-95 (App. Div. 1999).

However, the flip side is that if a child earns enough money during college that they don’t require parental support they may be emancipated and/or the parental obligation to college expenses and child support may be reduced. Tretola v. Tretola, 389 N.J. Super. 15 (App. Div. 2006)(court required to assess whether son was still dependent on family for support where he worked during the day and attended college at night)

What this means is that each case involving the interplay between college expenses and emancipation requires consideration of a unique set of facts and how these play out. There’s no quick and easy rule here and complex cases may require a plenary hearing.

The July 20 unpublished appellate opinion in Leotsakos v. Leotsakos provides an example of this. In this case the parties’ son Kyle attended Rider College from 2002 to 2004, then obtained a full-time job and dropped out of school. However, at the time of the 2006 motion Kyle had decided to return to school and was accepted to a college in North Carolina. Kyle’s mother brought a motion seeking to enforce her divorce agreement that required the father to pay college tuition, while the father brought a motion for emancipation and termination of his support obligation.

The motion judge declared Kyle to be emancipated finding that he had moved outside the sphere of influence of both parents and based on the two-year delay between dropping out of Rider and wanting to return to college, relieved the father of his agreement to pay college costs. (In the divorce agreement the husband had agreed to pay the children’s college and private school in return for the wife waiving alimony and child support while he was paying these expenses).

The appellate division disagreed, finding that the motion judge had abused his discretion in relieving the father of his obligation to pay college expenses where there was an enforceable agreement. Agreements are enforceable if they are fair and equitable. The court noted that the agreement did: “not condition [the father's] obligation on Kyle’s continuous uninterrupted college attendance.”

The court went on to say that “it is not uncommon in today’s society for young people to start college, take a break, and then return to complete their education at a later date.” In addition to the enforceability of the parties’ divorce agreement, the appellate division citing Keegan v. Keegan concluded that there were insufficient facts to conclude that Kyle was emancipated.

The case was remanded back to the trial court for a plenary hearing with the instruction that the motion judge should “reach a result that is consistent with Kyle’s best interests.”

Don't forget to make a motion to emancipate if paying support through probation

Image via WikipediaIt is not uncommon to come across a case where probation continue to garnish wages or collect child support many years after a child should have formally been emancipated. This is due to the fact there is no automatic emancipation at 18 in New Jersey, unlike in many other States. Many parents write letters to probation informing them that their child has graduated college or become emancipated. In some cases this stops the support, but in others this may provide a temporary solution that resurfaces later.

An example of this is the potential client who contacted me to explain that several years after graduation of a daughter from College, the Probation department suddenly started garnishing wages again and until this was fixed, the parent was unable to obtain a government job due to outstanding child support arrears. At the time of the college graduation, a letter had been sent to the probation department, but no emancipation motion had been made.

I believe the foundation of success in motion practice is in the paperwork. The potential client was interested in hiring an attorney to be sure that service of the motion papers was properly effected on the opposing party, and the orders the Judge would sign extinguishing arrears were well written and would achieve the desired result with probation. In this case the emancipation was clear and all that was necessary was documentary proof of graduation from college e.g. copy of college degree, college transcript for the Judge. Fortunately this parent had good relations with his daughter who would readily provide this information and certify she was working and not in need of support.

If you need to bring a motion and your budget is limited, focus on assistance in preparing good motion papers and turn up in court to argue the motion yourself. On uncomplicated cases, an attorney should be able to quote you a fixed price for preparing motion papers and/or appearing in court. Make sure you question whether oral argument is really necessary - in this case it wasn't since the emancipation decision would rest on the documentary proof in the motion papers, with the potential for significant cost savings in attorney time. Alternatively you can bring a motion yourself pro-se and the NJ Judiciary has a motion packet available to assist with this.

A short gap in college education does not lead to automatic emancipation

The recent unpublished decision of Conway v. Conway, A-0075-05T1 (App. Div. Aug. 23, 2006) has it all, a child at college emancipated even though there was no motion to emancipate, a lowering of support without any consideration of underemployment, a father not wanting to pay college expenses due to lack of involvement in the choice of college, and the imposition of an attorney fee sanction due to miscommunication by the law clerk over a continuance. In the interests of brevity, I am just going to comment on the emancipation, but it’s an opinion worth reading for the good legal analysis of the inter-related issues.

The parties were divorced in May 2004 and at the time of the divorce had one child, Jennifer still unemancipated. In September 2004 she went to Drexel university as a full-time college student after a one year gap. The defendant mother, brought a motion in June 2005 to enforce litigant’s rights as the plaintiff father had stopped paying support after being laid off from IBM. At the motion hearing in August 2005, the judge ordered Jennifer to be emancipated retroactive to January 2004 when she first stopped attending community college. However, neither party had requested Jennifer’s emancipation. Instead, the judge, sua sponte, emancipated Jennifer and determined that no award of child support while she was at college was required. The appellate division held this was a mistaken exercise of the court’s discretion and reversed the emancipation.

At the time of the divorce in May 2004 Jennifer was working part-time having left community college in January 2004, but the parties in their PSA put in the provision that “"in the event Jennifer returned to school on a full time basis, the college tuition would be borne in proportion to the parties respective incomes after utilization of any funds set aside for Jennifer." “Fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.” Smith v. Smith, 72 N.J. 350, 358 (1977). In the absence of changed circumstances, the trial judge should have afforded deference to the parties’ agreement that they intended to support Jennifer if she went back to college.

Citing Keegan v. Keegan, 326 N.J. Super. 289, 294-95 (App. Div. 1999), the appellate division also held that as a matter of law, emancipation does not automatically occur if a child takes a brief break in education e.g. between High School and College or during College. Each case is fact sensitive. Here, Jennifer had a break at the time her parents were divorcing and there was no evidence that she had become independent of her parents.

The appellate division concluded that ‘[b]ased on Keegan and on the agreement of the parties in their PSA, Jennifer has not been emancipated.”

Emancipation, child support and the anti-retroactivity statute

In the unpublished decision in Bundschuh v. Bundschuh, A-1847-05T2 (App. Div. Aug. 16, 2006) the defendant father, following a determination that he was disabled by the Social Security Administration, brought an unopposed motion to lower his child support and emancipate two of his five children effective their eighteenth birthdays.

Despite the motion being unopposed and the fact that neither of the children in question had completed high school or gone on to post-secondary education the motion judge did not grant emancipation retroactive to their 18th birthday’s (November 20, 2001 & July 30, 2003), instead they were emancipated effective March 1, 2004, the date of their father’s disability determination by the social security administration. The motion judge denied a motion for reconsideration. However, on appeal, the appellate division held they were emancipated as a matter of law at age 18 and the father should receive a credit for his overpayment of child support since then.

To better understand how the defendant father ends up with a credit for overpayment of child support since the two children turned 18, we need to first consider the New Jersey child support anti-retroactivity statute, N.J.S.A. 2A:17-56.23a. which states:

No payment or installment of an order for child support … shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

This statute means that if you bring a motion to lower your child support based on changed circumstances, any lowering of child support granted by the court will only be effective from the date of filing of your motion, even if the changed circumstances occurred before the motion was filed. As an example, you start a lower paying job (presuming no underemployment) on January 10, but don’t file a motion to lower your child support till April 1, the anti-retroactive statute means the earliest date the court can grant any decrease in child support is from April 1, the date of filing of the motion and not January 10 the date on which the changed circumstance occurred.

The reason the anti-retroactivity statute does not apply in this case is due to the decision in Mahoney v. Pennell, 285 N.J. Super. 638, 667 (App. Div. 1995), where the anti-retroactivity statute was held not to apply to post-emancipation arrearages. In Mahoney, the court reasoned that if an event giving rise to emancipation occurs, then after that point in time there is no legal duty for support, so it would be inequitable to hold a parent liable to pay arrears up until the date a motion was filed. Id. at 643. What this means is that if you stop paying child support after an emancipating event e.g. graduation from college, the court is not barred by the anti-retroactivity statute from wiping out the arrearages that might have accrued before the filing date of the motion.

Applying the same principles of equity, there is no reason why a parent should not be able to gain a credit for any over-payment of child support that takes place between an emancipating event e.g. reaching age 18 and the bringing of a later motion to emancipate. However, because to my knowledge there is no published decision about a credit situation only the arrearage situation described in Mahoney, some judges are reluctant to grant the credit and believe the anti-retroactivity statute applies. That is not the case and an unpublished opinion that supports this is Goldberg v. Goldberg, A-3205-00T3 (App. Div. May 21, 2002).

So going back to Bundschuh, the appellate division citing Mahoney, held there was no reason why the defendant’s two children should not be emancipated retroactive to their eighteen birthdays in 2001 and 2003, and a credit given to the father for his overpayment of child support since then. The case was remanded back to the family part and probation department for the credit amount to be determined.

Are you emancipated if you don’t maintain a B grade at college?

The answer to the question is No ! In the unpublished decision in Keno v. Pilgrim, A-395-04T3 (App. Div. Aug. 14, 2006) the appellate division reversed a motion judge's decision to emancipate the parties’ daughter, Nailah for failing to maintain a “B” average at Rutgers. In March 2004 in response to a motion for an increase in child support, the judge wrote the following order:

If Nailah does not obtain a B average, she will be emancipated and child support will be terminated. If her grades drop below the B requirement at any time after Spring 2004 semester, the child is emancipated and child support is terminated.

Nailah was subsequently emancipated by court order of July 26, 2004, despite remaining in good academic standing with the University. The appellate division reversed the emancipation decision:

The court's decision that Nailah was emancipated was based solely on her failure to maintain a "B" average at Rutgers. Early struggles at school do not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success. The standard applied by the court was arbitrary, capricious and unreasonable. Such a standard has not been created in New Jersey. Therefore, as a matter of law, Nailah was not emancipated from her parents by virtue of her grades.

The appellate division also remanded back to the trial court the issue of the defendant father's ability to contribute to his daughter’s college tuition, noting that a father of a child born out of wedlock still has a duty to provide support for post-secondary education. R.A.C. v. P.J.S., 380 N.J. Super. 94, 111 (App. Div. 2005). In considering the issue of college tuition, the appellate division also held that the motion judge failed to consider the applicable guidelines and standards, such as the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).

Adding to the impression of a home-run for the plaintiff Mother was the remand for a plenary hearing on whether her repeated motions for an upward increase in child support were really barred by laches, a remand of the motion judge's finding that she was voluntarily underemployed and therefore subject to imputed income and a finding by the appelate division that it was arbitrary to require 30 days notice of all medical expenses, bearing in mind nobody knows in advance when they are ill.

The appellate division summed things up by saying “[i]t would be a severe injustice for Nailah not to receive the full benefit of the child support to which she was entitled.” Support is a right that belongs to a child.

Finally “to avoid the appearance of bias or prejudice based upon the judge's prior involvement with the matter and his expressions of frustration [toward Nailah and her mother]" the appellate division remanded the case to be considered by a new Judge. Not surprising given the C performance the first time around. Fortunately for some judges, a B average is not required.

Emancipation does not automatically lower child support

Image via WikipediaA common misconception by pro-se litigants is that child support of $150 for three children means that if you emancipate one, the child support is lowered to $100. This is not the case as the recent unpublished appellate opinion in Piszel v. Antonucci discusses.

The reason is that the parent of primary residence has to first cover the fixed costs of running a home e.g. mortgage, property taxes irrespective of the number of the children, and each child is therefore an additional variable cost for food, clothes etc.

The other thing the child support guidelines require is that when you emancipate a child, the child support is recalculated based on the current guidelines and current income of the parties. Frequently the result is an increase in child support for the remaining children if it has been several years since the prior child support was calculated.

An example of this is in the Piszel case where the non-custodial parent's child support obligation increased from $150 to $189 after emancipating one of three children. It did not go down to $100 as the defendant father expected.

The problem with this case is that in setting the obligation at $189, the judge only had the income of the non-custodial parent to work with, the plaintiff mother not having responded to the motion. Instead of requesting the plaintiff’s income from the plaintiff, the motion judge requested that the defendant supply information on the plaintiff’s income before the motion would be heard.

I can’t understand why the judge didn’t write to the plaintiff and request they submit a current case information statement and three recent pay-stubs. An alternative approach would have been to grant the emancipation of the parties’ daughter, since she had graduated from college, and order plaintiff to submit a Case Information Statement (CIS) within 30 days to the court after which a new child support order would be entered. Emancipation constitutes changed circumstances that allows the court to order financial disclosure by the other party.

The appellate division quite rightly vacated the $189 child support order and remanded it back for the motion judge to order the custodial parent to submit a CIS.

When is a child emancipated in NJ?

Image via Wikipedia

Emancipation is the release of a child from parental care and responsibility, and is synonymous with reaching adulthood and independence. In New Jersey, unlike many other states, there is no automatic emancipation at the age of 18. Instead for parents to be released of their child support obligations, a court order must be entered. This can be achieved by submission of a consent order to the court or the bringing of a post-judgment motion.

Emancipation is a fact sensitive determination by the court. The standard the court applies is “[w]hen a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated.” Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).

A motion for emancipation can be a legal minefield. The following are a some of the key concepts:

Reaching the age of 18 does not result in automatic emancipation
There is no specific age at which emancipation occurs in New Jersey. Although 18 is the age of majority in New Jersey, reaching this age only provides prima facie evidence of emancipation, but is not determinative.

Attending Post-Secondary Education delays emancipation
While parents are generally not required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support. It is beyond the scope of this article to discuss the impact of part-time education, part-time employment, semesters off and gap years on whether a child should be considered emancipated.

Becoming pregnant or having a child is not automatic emancipation
Having a baby does not lead to automatic emancipation where the unemancipated child is still relying on parental support. A teenage, unmarried mother still living at home is unlikely to be declared emancipated.

Disability may require on-going support
Parents of a child who is unable to care for him or herself may have the support duty extended beyond the age of majority. Again the issue becomes whether the child has become independent or is able to become independent.

Marriage, entering the military or independent existence is emancipation
Children are emancipated and parents no longer have an obligation to support them if they become economically independent through employment, entry into military service, or marriage, and may be constructively emancipated if they, without cause, withdraw from parental control and supervision. Even if you think the principle is straightforward, grey areas frequently come up e.g. is entry to a military college such as West Point entry into the military or post-secondary education that requires an ongoing duty of support? The court in Bishop held that going to West Point constituted active duty in the United States Army and was therefore an emancipating event.

Conclusion
A child is emancipated in New Jersey when declared independent by the court. Many motions to emancipate are not black and white, but require the court to apply the case law to unique facts and view the totality of the circumstances. Even if a child is declared emancipated, the court has the equitable power to subsequently unemancipate. This area can be a legal minefield, so competent advice and representation should be considered.