[246 NJSuper Page 377] The present matter was opened to the court on the post-judgment application of defendant, Sheryl Jo (Ryan) Hand, seeking payment from plaintiff, Douglas G. Ryan, of child support
arrears, and reimbursement for college costs and orthodontic/oral surgery expenses of the child of the marriage.
The parties were married on January 28, 1961. One child was born of the marriage, Victoria Jean, who has now attained the age of 22 years, graduated college, and plans to marry. Sheryl Jo and Douglas divorced by judgment entered February 7, 1973, incorporating a separation agreement dated August 22, 1972. That agreement provided in pertinent part for plaintiff to pay to defendant wife child support of $262.50 a month, which sum was to increase to $300 a month commencing April 1, 1973. The support was to continue until the child, Victoria Jean, attained 18 years of age, married, served in the Armed Forces of the United States, obtained full-time employment, or was otherwise emancipated. In addition, plaintiff agreed to pay for Victoria Jean's college education, not to exceed four years, and in the event Victoria Jean attended college, her support payments were to continue until she attained 22 years of age or no longer attended college. Further, plaintiff agreed to pay for any orthodontic work or expense of oral surgery for Victoria Jean.
The separation agreement was to be construed under the laws of the State of Virginia. However, the judgment of divorce, incorporating the agreement, specifically disapproved the application of Virginia law as it related to the future needs and welfare of the child. Accordingly, this post-judgment motion is being construed under New Jersey law as the jurisdiction entering the divorce decree and the state of residence of plaintiff.
In support of her application before the court, defendant has filed certifications which state that plaintiff has failed to comply with the judgment of divorce in that he has made little or no child support payments over the last 15 years and defendant computes arrears through December 1989 at $62,400. In addition, defendant states that plaintiff, also in contravention of the judgment of divorce, has not paid college costs advanced by her
of $16,439 and orthodontic expenses advanced by her of $5,125 for the child, Victoria Jean. In reply, plaintiff has filed certifications indicating that he was in substantial compliance with child support payments through November 1974. He further states that, as a result of defendant remarrying in August 1974, on or about that time through the beginning of 1975, a verbal agreement was struck between the parties whereby plaintiff would no longer be obligated to pay child support, college or orthodontic/oral surgery expenses in exchange for no visitation or contact by plaintiff with the child, Victoria Jean.
While the factual basis giving rise to nonpayment of child support by plaintiff is in dispute, undisputed is the fact that no child support payments under the judgment of divorce have been received by defendant for 15 years and defendant has not sought relief from the court to enforce such payments until this application. In this context, despite the passage of a considerable period of time, defendant argues that child support arrears are vested and cannot be modified by this court. Defendant relies upon the recent child support enforcement statute, effective November 21, 1988, which provides, in part, that:
[a]ny payment or installment of an order for child support . . . shall be a judgment by operation of law on and after the date it is due. No payment or installment of an order 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. . . . [ N.J.S.A. 2A:17-56.23a.]
Defendant argues that the statute has recently been applied retroactively by Judge Krafte in Harris v. Harris, 235 N.J. Super. 434, 563 A.2d 64 (Ch.Div.1989) and that Harris is dispositive of the within matter. Prior to the enactment of N.J.S.A. 2A:17-56.23a, the modification or extinguishment of support arrears were matters addressed to the sound discretion of the court and, if support payments were not received for a considerable period of time, equitable considerations determined ...