MARIA REGINI v. GEORGE REGINI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5651-04T15651-04T1

MARIA REGINI,

Plaintiff-Respondent,

v.

GEORGE REGINI,

Defendant-Appellant.

_______________________________________

 

Argued April 25, 2006 - Decided May 12, 2006

Before Judges Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-242-98C.

Helen B. Rosner argued the cause for appellant (Stone Mandia, attorneys; Ms. Rosner on the brief).

Respondent did not file a brief.

PER CURIAM

This appeal involves an application of N.J.S.A., 2A:17-56.23a, commonly known as the child support anti-retroactivity statute. The Family Part held that the statute mandated the denial of a father's motion to eliminate child support arrears that had accumulated after both of his children had left their mother and moved in with him, but before the filing date of his motion. We reverse.

The facts are not complicated. Appellant George Regini and respondent Maria Regini were divorced in June 1998, pursuant to a final judgment entered in the Family Part in Monmouth County. The parties have two daughters, one born July 4, 1989 and the second born March 26, 1991. The Final Judgment of Divorce (FJD) required the father to pay the mother $350 per week ($150 per child) in child support, which the father apparently paid on a current basis from June 1998 through September 2004. The FJD granted primary residential custody of the girls to the mother, with both parents sharing joint legal custody. Following the divorce, the mother gave birth to three more children fathered by other men.

In March 2004, the parties' older daughter, who was then age fourteen, asked to live with her father in Baiting Hollow, New York because the living conditions at her mother's residence had become stressful and unstable. The father agreed to her request without any objection from the child's mother. He enrolled the daughter at a parochial school in Riverhead, New Jersey. The father continued to pay the mother the full $350 weekly in child support, despite the relocation of the older daughter.

Shortly before giving birth in September 2004 to a second child with her current boyfriend, the mother requested the father also to take in the parties' younger daughter, who was then thirteen. The father agreed to that request, and his second daughter moved in with him and her sister in New York in September 2004. He likewise enrolled the second daughter in parochial school with her sibling.

At this point the father, who was directly providing food, clothing, shelter, and tuition for both children, ceased paying child support. He did not, however, immediately file a motion to change custody or to eliminate his child support obligations. His explanation for the delay is that he had been assured by his ex-wife that she would file court papers to reflect the daughters' new residency with him in New York. He also professed that he was fearful that if he filed such papers on his own, his ex-wife might take his daughters away from him, having made similar threats to do so in the past.

In November 2004 a DYFS representative visited the father's New York home and informed him that the agency was conducting an investigation of his ex-wife and her boyfriend. The DYFS worker advised him that his ex-wife was on probation as the result of her use of cocaine during her third post-divorce pregnancy, and that she had violated her probation by residing with her boyfriend.

These revelations prompted the father to retain counsel in New Jersey in March 2005 and file a motion to formalize his primary residential custody of the two children and to terminate his support obligations for the children, retroactive to the second child's relocation to his residence in New York. The mother, also represented at this stage by counsel, filed a certification in response to the father's motion. In her certification, the mother did not object to the prospective change in custody, but characterized her daughters' relocation with their father in 2004 as "a test period." The mother objected to any retroactive elimination of the father's arrears and, indeed, cross-moved to collect $19,250 in arrears that allegedly had accumulated from September 2004.

The Family Part judge readily granted the father's motion to obtain primary residential custody and to be prospectively relieved of new child support obligations. However, the judge felt "constrained" by N.J.S.A. 24:17-56.23a not to vacate the arrears retroactively before the date on which the father filed his modification motion, i.e., March 29, 2005. The motion judge expressly acknowledged that his reading of the statute would cause the unremitted portion of the arrearages to "fund the [mother] and her other children to whom this defendant [the father] had no obligation to support," agreeing with the father's counsel that the statute, as he construed it, produced a "harsh result." Nonetheless, the judge considered the anti-retroactive terms of the statute unyielding in these circumstances. The court granted the father a stay of enforcement of the unpaid arrears, pending his appeal of the court's statutory interpretation.

The statute at issue, N.J.S.A. 2A:17-56.23a, provides in its present amended form:

No payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of P.L.1993, c.45 (C.2A:17-56.23a), 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. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court.

This provision, which dates back to 1988, was adopted to comply with federal legislation; 42 U.S.C.A. 666(a)(9)(C), requiring states, as a condition of federal funding, to conform with various federal child support standards, including a mandate that "support obligations may not be subject to retroactive modification on and after the date they are due." Mahoney v. Pennell, 285 N.J. Super. 638, 642 (App. Div. 1995).

In Mahoney, supra, we considered whether N.J.S.A. 2A:17-56.23a precluded the equitable retroactive modification of support in scenarios where children become emancipated and the payor ex-spouse moves to vacate the support obligation some time after the facts giving rise to the emancipation occur. We held that the statute did not bar such retroactive modification, and the corresponding vacature of arrears, if the equities justify it. Id. at 643. We reasoned that where there is no longer a legal duty of support, no child support can become due. Ibid. The statute thus does not inexorably require the collection of child support if the legal duty upon which that support is based has been extinguished. We noted in Mahoney that such relief, there in the specific context of emancipation, requires a "fact-sensitive" judicial determination. Ibid.

Additionally, we recognized in Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 9 (App. Div. 1991), that when a supported child changes residency, his or her parents may mutually agree to alter child support arrangements, either by an express agreement or by an implied agreement reflected by the parties' course of conduct subsequent to the residency change. We observed that a court may enforce such agreements retroactively without violating the statute. Ibid.

Here, we believe that the record equitably warrants the retroactive elimination of the father's child support obligations to September 2004 by which time both of his daughters had moved in with him, with their mother's permission, and he had registered them in private school for the 2004-05 academic year. At that time, the mother was being evicted with her present boyfriend and other children, and was bearing no shelter costs for the appellant's daughters. The record clearly demonstrates that the father's legal duty of support ended once both children were living with him in September 2004 on what obviously would be a long-term basis. Despite the mother's certification describing her daughters' successive relocations in 2004 as a "test period," we believe that the actual conduct of the parties reflects an implied agreement that the father would provide for the children directly out of his own pocket, and that the mother would no longer receive child support to maintain the girls' day-to-day needs.

Although we appreciate the motion judge's caution in not transgressing the important public policies reflected in N.J.S.A. 2A:17-56-23a, we believe that the facts in this case clearly fall within a permissible exception to the statute, and that it would be manifestly unjust to compel the father to pay arrearages to the mother that would comprise, in essence, a windfall. The father is entitled to the retroactive elimination of child support, commencing September 1, 2004. Because we are uncertain whether the $19,250 in arrearages were accurately calculated by the Probation Department using that effective date, we remand to verify the accuracy of that calculation and for the entry of an appropriate order consistent with this opinion.

 
Reversed and remanded.

We see no need to identify the daughters by name in this opinion, particularly in view of the involvement of the Division of Youth and Family Services (DYFS) in investigating the mother's post-divorce residence.

The father does not seek a retroactive modification back to March 2004, when his older daughter moved in with him, and we therefore do not address whether such relief would have been appropriate, particularly in view of the fact that the mother continued to maintain custody of the younger daughter until September 2004.

We note that the father makes no claim for a support contribution from the mother.

(continued)

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A-5651-04T1

May 12, 2006