On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.
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.*fn1
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 ...