The opinion of the court was delivered by: Rand
This case comes before the court on an application by defendant to reduce, terminate and/or modify his child support obligation while he is incarcerated. An order was entered on August 6, 1990, compelling defendant to pay $35.00 per week child support, based on defendant's then gross income of $97.00 per week.
Defendant now claims he has been incarcerated since June 18, 1991, and is not eligible for parole until 1997. Due to his incarceration defendant's only income is now $1.60 per day or $35.00 to $50.00 per month depending on the number of days worked.
Defendant filed his first motion to suspend his child support obligation on April 20, 1993, claiming a lack of income and assets. The motion was denied by order of May 18, 1993. No appeal was taken from that order.
Defendant filed a second motion seeking to vacate the May 18, 1993, order. The motion was heard on November 19, 1993. Although defendant expressly waived oral argument, plaintiff, Lois Topham-Rapanotti, appeared at the motion hearing and was permitted to speak. She had not filed a response and appeared pro se. At the motion hearing plaintiff told the court that defendant did not pay his child support obligation even before he was incarcerated and that his incarceration did not change the pre-existing situation.
This second motion was denied on procedural grounds. The motion Judge indicated that he had originally denied defendant's application on May 18, 1993, and he saw no reason to change or revise his prior order. The motion Judge was satisfied that defendant's own conduct caused his incarceration and should not relieve him of his financial obligation to support his son.
Defendant appealed that second decision. The matter was heard by the Appellate Division and was remanded back to the trial court for further proceedings. The Appellate Division stated it was inappropriate to permit plaintiff to be heard in court in the absence of defendant when defendant expressly waived oral argument and plaintiff did not file a written response. However, the Appellate Division did not rule on the issue of whether defendant's child support obligation should be suspended, vacated, and/or modified.
This court rescheduled the motion notifying both parties to be present.
The court must now determine whether a reduction, suspension, termination, and/or modification of child support is appropriate where the defendant is incarcerated and lacks sufficient income and/or assets to pay his current child support obligation.
This is a matter of first impression in ...