KRISTEN BESSINGER v. ANTHONY MICHAEL KLICH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1107-09T31107-09T3

KRISTEN BESSINGER,

Plaintiff-Appellant,

v.

ANTHONY MICHAEL KLICH,

Defendant-Respondent.

_______________________________________

 

Submitted August 3, 2010 - Decided

Before Judges Graves and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2023-97.

Law Offices of Donna M. Russo, attorneys for appellant (Nancy B. Marchioni, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from an order entered by the Family Part on December 2, 2008, which reduced defendant's child support obligation to zero as of June 2005 and gave defendant credit for all child support arrears retroactive to that date. Plaintiff also appeals from an order entered on October 13, 2009, which denied her motion for reconsideration of the December 2, 2008 order. For the reasons that follow, we affirm in part and reverse in part.

This appeal arises from the following facts. The parties were married on July 15, 1989, and their marriage was dissolved by a judgment of divorce dated July 21, 1997. The judgment provided, among other things, that defendant would pay $100 per week for the support of the parties' two minor children.

On October 6, 2008, defendant filed a motion in the trial court seeking to eliminate his child support obligation retroactive to June 2005, on the ground that he had been declared to be disabled by the Social Security Administration (SSA), as of that time. The court granted defendant's motion and entered an order dated December 2, 2008, which eliminated defendant's child support obligation retroactive to June 2005. The order further provided that defendant would be given credit towards his child support arrears retroactive to June 2005.

Thereafter, plaintiff filed a motion seeking reconsideration of the court's December 2, 2008 order. Plaintiff asserted, among other things, that retroactive modification of the child support obligation was prohibited by N.J.S.A. 2A:17-56.23a. Plaintiff argued that, under the statute, modification of defendant's child support obligation could only be retroactive to October 6, 2008, the date upon which defendant filed his motion seeking elimination of his child support obligation.

The court entered an order dated October 13, 2009, denying plaintiff's motion. In a statement of reasons appended to the order, the court noted that defendant's income in 2005 had been less than $500. The court stated that according to defendant's case information statement, he did not have any savings or income until he began to receive social security disability payments in 2008. The court additionally noted that defendant had received a retroactive payment of social security disability payments (SSD) but the probation department had garnished the payment and applied it to defendant's child support arrears.

The court also stated that defendant had made several applications to reduce his child support obligation while his application for SSD benefits had been pending but those applications had been denied because the SSA had not rendered its decision on the application. The court wrote that, under the circumstances

[e]quity mandates that the relief [reach] back to the date of June 2005, as the government determined that he could not work as of that date. [Defendant] had actively attempted to move before the court for modification, but through the vagaries of the governmental decision processes, was unable to provide the proof to the court.

The court reaffirmed it decision to modify defendant's support obligation retroactively to June 2005. This appeal followed.

On appeal, plaintiff argues that the trial court erred by eliminating defendant's child support obligation retroactive to June 2005. N.J.S.A. 2A:17-56.23a provides in pertinent part that:

[n]o 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 [N.J.S.A. 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.

This statute "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." Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995).

Here, the trial court erred by retroactively modifying defendant's child support obligation to June 2005. It is undisputed that defendant filed his motion for modification of his support obligation on October 6, 2008. The statute plainly and unequivocally bars the court from modifying retroactively a party's child support obligation to a date prior to the filing of the motion seeking that relief. Where, as here, a statute is clear and unambiguous, we are required to enforce the law according to its terms. State, Dept. of Law & Pub. Safety v. Bigham, 119 N.J. 646, 651 (1990).

We note that, in Pennell, we held that the limitations on retroactive modifications of child support obligations in N.J.S.A. 2A:17-56.23a does not apply when the support obligation relates to a child who has become emancipated. Pennell, supra, 285 N.J. Super. at 643. We said that "the underlying premise" of a child support order is the existence of a "duty to support[.]" Ibid. We added that, "[w]here there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due." Ibid. Thus, we concluded that the Legislature did not intend "to bar termination of child support retroactively to the time a child became emancipated." Ibid.

In this case, however, defendant's disability does not eliminate his "duty to support" the parties' child. Rather, the disability is comparable to a loss of employment, which is a change of circumstance that may reduce or eliminate the amount of support defendant would be obligated to pay. The limitation on retroactive modification in N.J.S.A. 2A:17-56.23a clearly applies to this situation and the trial court erred by concluding otherwise.

As we stated previously, in its decision on plaintiff's motion for reconsideration, the trial court observed that "defendant had made applications for the court to reduce his support several times." The court stated that defendant's applications were denied "due to the lack of proof regarding the [SSA's] determination." However, the record does not support these findings. Indeed, in his certification dated January 13, 2009, defendant stated that he did not make a formal motion for relief from his support obligation until October 6, 2008.

In its decision on the reconsideration motion, the court also stated that defendant "was unable to prove to the court that he was disabled earlier than 2008 when the [SSA] issued [its] decision." However, although defendant could not establish that the SSA had declared him disabled until the SSA rendered its decision on his application, nothing precluded defendant from making a motion in the trial court before the SSA acted and endeavoring to establish that he was, in fact, disabled and unable to work in June 2005.

The court also stated in its decision on plaintiff's reconsideration motion that "[e]quity mandates" that defendant's child support obligation be retroactively modified to the date when the SSA determined he was disabled. We disagree. The legislative mandate in N.J.S.A. 2A:17-56.23a may not be disregarded based on the court's perceived equitable concerns.

Accordingly, we affirm the trial court's determination to relieve defendant of his child support obligation but reverse the provision of the court's order of December 2, 2008, which made that change retroactive to June 2005. We remand for entry of an order making the modification of defendant's child support obligation retroactive to October 6, 2008.

Affirmed in part, reversed in part, and remanded for entry of an order in conformity with this opinion.

 

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A-1107-09T3

August 17, 2010