[268 NJSuper Page 604] The issue presented as part of this plenary hearing is whether under any circumstances, subsequent to the enactment of N.J.S.A. 2A:17-56.23a, child support can be modified retroactively except for the period during which the party seeking relief has pending an application for modification.
In the case at bar, the parties had two children during their marriage and were divorced on March 10, 1989. The matter came before the court when plaintiff sought an order for the enforcement of her support payments, and defendant cross-moved for a reduction thereof.
At the time of the divorce, the parties agreed that defendant would pay rehabilitative alimony of $1,000 per month for six years and would pay child support of $700 per month. These amounts of support were based upon plaintiff having an earned income of $21,400 per year and defendant having an earned income of up to $52,000 per year. Defendant had earned higher incomes in prior years. The judgment of divorce also required defendant to advise plaintiff of his income level on a monthly basis until it reached $75,000 per year. It is important to note that no testimony was provided that defendant ever actually complied with this obligation. Defendant was in the computer sales business and late in 1989, the year of the divorce. He made a large sale for which he received his commission in 1990. The payment of the large commission, together with his other income, provided defendant with $172,645 of earnings in 1990.
Defendant did not provide information to plaintiff concerning his 1990 income until he was required to do so as part of this application for a reduction.
Defendant's application was made in 1991 when his gross income was $22,564. He was unemployed during a portion of the year. In 1992, defendant was an independent contractor who received a draw of $3,000 per month against commissions and his Form 1099 showed total 1992 compensation of $10,000. A copy of defendant's 1990 tax return was first made available to plaintiff when it was attached to defendant's case information statement.
Plaintiff, no doubt mindful of the restrictive language contained in N.J.S.A. 2A:17-56.23a, has advanced the argument that the court should consider income averaging because of defendant's widely fluctuating earnings in an attempt to utilize the large 1990 earnings. The courts of New Jersey have not yet utilized this approach in determining appropriate support payments. Courts in other jurisdictions have considered this approach.
In Zimin v. Zimin, 837 P. 2d 118 (Ala.1992), The Supreme Court of Alaska reviewed the obligations imposed by a trial court upon a commercial fisherman. The Supreme Court found that a three year average of his income provides an accurate estimate of an obligor parent's current earning capacity for purposes of child support when the parent's income is subject to yearly fluctuations.
In like regard, in reviewing the obligation of a farmer whose income fluctuates, the Court of Appeals of Iowa found that support should be set at a single amount subject to future modification and that a non-custodial parent's average income should be computed on the basis of "income averaging". In re the Marriage of Blume, 473 N.W. 2d 629 (Iowa Ct.App.1991). See also In re the Marriage of Vanet, 544 S.W. 2d 236 (Mo.Ct.App.1976), regarding the fluctuation in income of an attorney.
The Supreme Court of North Dakota reviewed the issue in connection with an engineer who operated his own business. Interestingly, the Supreme Court of North Dakota wrote in Clutter v. McIntosh, 484 N.W. 2d 846 (1992):
Most of Gordon's earnings since 1984 have been from his own corporation, G.W. McIntosh Engineering and Consulting, Inc. Gordon owns this business jointly with his wife, Gerlyn, who is currently employed outside that corporation. When an obligor is self-employed with income subject to fluctuation, the administrative guidelines instruct that information from several years "must" be used to ...