New Jersey Family Law BlogNew Ruling on Child Support Modification
Parties’ daughter was killed in an automobile accident on October 6, 2007. On January 10, 2008, the plaintiff filed a pro se motion seeking, inter alia, to reduce child support. The plaintiff argued that any modification should be retroactive to the date of the daughters death, while the defendant posited that the filing date of the plaintiff’s motion should go
The applicable law is N.J.S.A. 2A:17-56.23(a), which basically states that child support can not be made retroactive and will only be permitted from the date of the filing of the motion.
The issue here was whether child support is to be amended on the date of the child’s death or the filing date of the motion. There have been several scenarios where the courts have granted retroactive modification to child support. In the case of Keegan v. Keegan, 326, N.J. Super. 289, 741 A.2d 134 (App. Div. 1999), trial court granted a retroactive increase in the aspect of child support. Halliwell v. Halliwell, 326 N.J. Super. 442, 741 A.2d 638 (App. Div. 1999), dealt with the issue of retroactive modification of an obligor who was incarcerated for an extended period of time
The most analogous case to the one at bar was Mahoney v. Pennell, 285 N.J. Super. 638, 667 A.2d 1119 (App. Div. 1995), dealt with whether retroactive modification was permissible in the event of an emancipated child. The court said, “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.” Id. at 643.
The court in this case said that upon the death of the parties’ daughter, the duty to pay support for her ceased. 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.
Accordingly, this court found that N.J.S.A. 2A:17-56.23(a) does not bar the modification of child support retroactive to the date of death of any of the parties’ children.