Before Judges Keefe, Rodriguez and Lintner.
The opinion of the court was delivered by: Lintner, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 1999
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County.
On March 16, 1994, plaintiff (Ms. Keegan) and defendant (Mr. Keegan) were divorced by final judgment following a trial. In April 1998, Mr. Keegan filed a notice of motion for emancipation and modification of alimony and child support. Specifically, Mr. Keegan sought to: (1) emancipate their oldest daughter (Jennifer) who graduated from college in May 1998; (2) emancipate their second daughter (Lea) who ended her full-time college status and began working on a full-time basis; and (3) modify his child support obligation for their youngest daughter (Michele) who was in college at the time.
In response, Ms. Keegan cross-moved seeking: (1) collection of arrears for Jennifer's college expenses; (2) retroactive contribution for Lea's college expenses and denial of her emancipation; and (3) contribution for college expenses associated with Michele.
The central issue raised by this appeal is whether N.J.S.A. 2A:17-56.23a, applies to prevent retroactive increases in child support. We conclude the anti-retroactive support statute's applicability is limited to prevent retroactive modifications decreasing or vacating orders allocated for child support.
On June 3, 1998, after conducting a hearing on cross-motions, the trial Judge issued an order that: (1) emancipated Jennifer, retroactive to May 29, 1998; (2) denied emancipation for Lea; (3) modified and reduced child support retroactive to May 29, 1998; (4) ordered Mr. Keegan to pay college expenses of $2,050.00 for Jennifer, $1,291.67 for Lea, and $7,279.58 for Michele; and (5) ordered Mr. Keegan to pay fifty-eight percent and Ms. Keegan to pay forty-two percent of any remaining college expenses for the two daughters not yet emancipated. On or about June 16, 1998, Mr. Keegan filed a motion for reconsideration. On July 17, 1998, Judge Williams denied Mr. Keegan's motion for reconsideration and issued an opinion letter setting forth the court's reasoning.
After the filing of the notice of appeal, a consent order was issued rectifying a miscalculation, thereby correcting the amount Mr. Keegan was to pay for Michele's college expenses from $7,279.58 to $1,365.32. *fn1
Mr. Keegan appeals from the trial court's order denying his motion to emancipate his daughter Lea and ordering him to reimburse Ms. Keegan for college expenses incurred for Lea and Michele, raising the following points: (1) the trial court erred by retroactively modifying child support by ordering defendant to reimburse plaintiff for college expenses incurred; (2) in the alternative, the trial court erred by being inconsistent in retroactively increasing the college expense aspect of the child support obligation without retroactively reducing the corresponding direct support, since the law of the case inextricably linked both aspects of child support. (3) The trial court erred by failing to emancipate Lea during the period that she was not attending college on a full-time basis and reporting on her income tax returns that she was independent.
The final judgment of divorce granted the parties joint legal custody of the children and stipulated that Mr. Keegan was to pay "child support in the amount of $305 per week" for the parties' three daughters. It further provided that Mr. Keegan pay seventy percent of Jennifer's college expenses, which Ms. Keegan estimated "to be approximately $70 per month for interest on loans, plus miscellaneous expenses of approximately $1,000 per year." The final judgment was silent as to any potential financial obligations Mr. Keegan might have for Lea's and Michele's college expenses. By ordering him to pay fifty-eight percent of the college expenses already incurred for both Lea and Michele, Mr. Keegan argues that the trial court erred, as its order is contrary to the anti-retroactive provisions of 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 with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.
Mr. Keegan urges that fundamental notions of due process and fairness require timely notice before establishing or changing an obligation for support, which includes by its nature the payment of college expenses. Specifically, Mr. Keegan argues that the legislative purpose of the statute was to provide parents with the opportunity to budget their finances to prevent being faced with the sudden obligation to pay arrearages. He also argues that courts should comply with the anti-retroactive statute for all forms of child support modifications, including college education expenses.
Mr. Keegan misconstrues the legislative purpose of the anti-retroactive statute. The statute "was designed to comply with the Omnibus Budget Reconciliation Act of 1986 . . . ." *fn2 Bowens v. Bowens, 286 N.J. Super. 70, 71 (App. Div. 1995). The federal law conditions compliance "with various federal standards governing child support" in order to receive "federal funding for collection of child support arrearages." Ibid. The statute was intended "to improve effectiveness of child support enforcement." 42 U.S.C.A. § 666. In part, the federal statute prohibits the retroactive modification of "any payment or installment of support under any child support order, . . . except that such procedures may permit modification with respect to any period during which there is pending a petition for modification . . . ." 42 U.S.C.A. § 666(a)(9)(C). Prior to the enactment of N.J.S.A. 2A:17-56.23a, ...