Ohlhoff v. Ohlhoff

• Decision Date: 04 February 1991
• Citation: 586 A.2d 839,246 N.J.Super. 1
• Parties: Henry James OHLHOFF, Plaintiff-Respondent, v. Mary Ann OHLHOFF, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

246 N.J.Super. 1

586 A.2d 839

Henry James OHLHOFF, Plaintiff-Respondent, v. Mary Ann OHLHOFF, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 5, 1990.

Decided Feb. 4, 1991.

Jack S. Zakim, Glen Rock, for defendant-appellant.

Rupp & Ten Hoeve, for plaintiff-respondent (John E. Ten Hoeve, Jr., on the brief, Hackensack).

Before Judges GAULKIN, HAVEY and SKILLMAN.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

The primary issue presented by this appeal is whether N.J.S.A. 2A:17-56.23a, which bars any retroactive modification of child support, is applicable with respect to child support payments which accrue during a period when a supported child is residing with the supporting parent.

The parties were divorced on May 26, 1982. The judgment of divorce incorporated by reference a settlement agreement, dated August 20, 1980, which granted custody of the two minor children of the marriage, then ages three and six, to defendant and required plaintiff to pay $840 per month in support. This obligation was allocated as $262.50 for alimony and $288.75 for the support of each child. These amounts were to be increased 5% annually, commencing January 1, 1981.

In May 1987, one of the children, Christopher, then age 13, moved from defendant's home to plaintiff's home. Although it was unclear initially whether this change would be temporary or long-term, Christopher had continued to reside in plaintiff's home until the day this matter was heard in the trial court. Shortly after Christopher moved into his home, plaintiff reduced his child support payments to defendant by $200 per month. He continued making child support payments at that reduced level until December 1988, at which time he terminated all payments of support on behalf of Christopher.

On January 23, 1989, defendant's counsel sent a letter to plaintiff which, among other things, demanded that he resume support payments on behalf of Christopher. When plaintiff did not accede to this demand, defendant filed a motion to compel him to pay child support arrearages in accordance with his obligations under the 1980 settlement agreement. Plaintiff filed a cross motion seeking, among other things, custody of Christopher, termination of his support obligation on behalf of Christopher, and elimination of all arrearages for the support of Christopher, retroactive to May 1987. In opposing the part of plaintiff's motion seeking the elimination of child support arrearages, defendant relied upon the part of N.J.S.A. 2A:17-56.23a which prohibits the retroactive modification of child support.

The trial court granted the parts of plaintiff's motion seeking custody of Christopher, termination of his support obligation on behalf of Christopher and elimination of the support arrearages, retroactive to May 1987, and denied the part of defendant's motion seeking support arrearages. Relying upon Prikril v. Prikril, 236 N.J.Super. 49, 563 A.2d 1164 (Ch.Div.1989), which holds that a change in the physical custody of a child, even though not formalized by court order changing legal custody, automatically abrogates an obligation to pay child support, the trial court concluded that N.J.S.A. 2A:17-56.23a did not bar the retroactive termination of child support on behalf of Christopher.

Although defendant's brief contains five point headings, all of her arguments are addressed to the single point that any retroactive modification of plaintiff's child support obligation on behalf of Christopher is barred by N.J.S.A. 2A:17-56.23a and therefore that the trial court should have entered a judgment for the full amount of support withheld by plaintiff. ¹

We conclude that a change in the residence of a child with respect to whom there is an outstanding support order does not automatically abrogate a support obligation. Consequently, N.J.S.A. 2A:17-56.23a is applicable under such circumstances. We further conclude that this statute is prospective in operation only and therefore does not bar the elimination of child support arrearages for the period prior to its effective date, November 20, 1988. Finally, we reject plaintiff's argument that N.J.S.A. 2A:17-56.23a violates article 6, section 2, paragraph 3 of the New Jersey Constitution. Accordingly, we affirm the trial court's order denying defendant's application for arrearages insofar as it applies to the period prior to the effective date of N.J.S.A. 2A:17-56.23a but reverse and remand for further proceedings in conformity with this opinion with respect to the period subsequent to that date. ²

I

On August 22, 1988, the Governor signed into law Chapter 111 of the Laws of 1988, entitled "An Act Concerning Child Support Enforcement," now codified as N.J.S.A. 2A:17-56.23a, which provides in pertinent part:

No payment or installment of an order for child support, or those portions of an order which are allocated for child support, shall be retroactively modified by the court except for the period during which the party seeking relief has pending an application for modification, but only from the date of mailing the notice of motion to the court or from the date of mailing written notice to the other party either directly or through the appropriate agent.

This statute, which was made effective 90 days after enactment, was designed to conform with federal legislation which provides that, as a condition of receiving federal funding for collection of child support arrearages, states must comply with various federal standards governing child support, which include a requirement that child support obligations may not be subject to retroactive modification on and after the date they are due. 42 U.S.C.A. § 666(a)(9)(C).

On its face, N.J.S.A. 2A:17-56.23a bars any retroactive modification of a child support obligation, regardless of the reason for the requested modification. The statute contains no exception for a situation where the supported child has temporarily or even permanently moved into the home of the supporting parent. However, the trial court concluded, relying upon the reasoning in Prikril v. Prikril, supra, that a child support obligation is " 'discharged' as a 'matter of law' " by a change in the physical custody of a child, 236 N.J.Super. at 51, 563 A.2d 1164, and therefore that N.J.S.A. 2A:17-56.23a is inoperative in this situation.

We disagree with the essential premise of Prikril that a child support obligation is automatically abrogated, and consequently that support may be unilaterally withheld without court authorization, if a child moves from the home of the parent to whom support is owed into the home of the supporting parent. Therefore, we overrule Prikril.

There is no New Jersey case which directly addresses the effect of a change of a supported child's residence upon a support obligation. Di Tolvo v. Di Tolvo, 131 N.J.Super. 72, 77, 328 A.2d 625 (App.Div.1974), the only case on this point cited in Prikril, simply noted the entry of a consent order terminating support for a child who had moved into the home of the supporting parent, and thus has no precedential significance. Moreover, it is implicit in Testut v. Testut, 34 N.J.Super. 95, 102-3, 111 A.2d 513 (App.Div.1955) and Brummer v. Brummer, 6 N.J.Super. 401, 407, 69 A.2d 38 (Ch.Div.1949) which dealt with supporting parents' claims to credits for amounts expended while the supported children were residing with them, that child support obligations are not automatically abrogated when a child moves into the home of the supporting parent. Decisions in other jurisdictions are generally in agreement with this view. See, e.g., Baures v. Baures, 13 Ariz.App. 515, 478 P.2d 130, 133-34, 47 A.L.R.3d 1024, 1028-29 (Ct.App.1970); In re Marriage of Eagen and Eagen, 292 Or. 492, 640 IP.2d 1019 (1982); In re Marriage of Oliver, 43 Wash.App. 423, 717 P.2d 316, 318 (Ct.App.1986); see generally, Annotation, Right to Credit on Accrued Support Payments for Time Child is in Father's Custody or for other Voluntary Expenditures, 47 A.L.R.3d 1031 (1973).

We now expressly adopt the rule implicit in Testut and Brummer and hold that a child support obligation is not automatically abrogated when a child for whom support is owed moves into the home of the supporting parent. A child's change of residence from a custodial to a noncustodial parent is seldom permanent at the time of its inception, especially when the change occurs on the initiative of a teenager who believes that he or she will be happier living with the other parent. Generally, some time must elapse before the child can decide whether the new living arrangement really will be more to his or her liking and before the custodial parent can decide whether to accept the change on a permanent basis. In the interim, the custodial parent ordinarily must continue to bear the expense of housing which includes a room for the child. Furthermore, the parents may have different perceptions of the permanency of a child's change of residency. The noncustodial parent into whose home the child has moved may consider the change to be permanent immediately while the custodial parent may continue to believe even a substantial time afterwards that the child will eventually return to that parent's home. We thus perceive no basis for concluding that a parent's child support obligation is automatically abrogated if the child moves into the home of the supporting parent. Therefore, unless the parties are able to agree upon a termination or modification of child support, the supporting parent is required to obtain court approval before terminating or reducing support for a child who presently resides with that parent.

An additional reason for holding that a supporting parent may not unilaterally terminate the support for a child who moves into that parent's home is that the support paid for one child cannot be isolated from support paid for other members of the family unit. Although a court...