On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1649-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2007
Before Judges Fuentes and Grall.
Defendant John E. Kindt, Jr. appeals from an order denying his motion to reduce the amount of child support he is obligated to pay his former wife, plaintiff Anne O'Connor. On February 16, 2006, Kindt was sentenced to a term of incarceration for seven years. In August 2006, defendant moved for a reduction in his child support obligation. A judge of the Family Part denied that motion on September 8, 2006. Because the court did not consider whether defendant's incarceration warranted deferral of the decision on the motion pending Kindt's release from the custodial sentence, we reverse and remand for further consideration. See Halliwell v. Halliwell, 326 N.J. Super. 442, 457-58 (App. Div. 1999).
Pursuant to the parties' agreement incorporated in their final judgment of divorce, defendant is obligated to pay child support in the amount of $475 per week. On the date his motion for reduction of child support was heard, defendant's earliest possible parole date was July 20, 2007, and his latest release date was December 30, 2010. By leave granted, defendant has supplemented the record with a certification indicating that he was denied parole and that his earliest eligibility date has been extended for fourteen months, until September 2008.
The motion judge concluded that because incarceration is a consequence of voluntary conduct, in this case interference with the custody of the children he is obligated to support, modification of support was not warranted. This was error. In Halliwell, we recognized that persons who are incarcerated because they chose to commit a crime are not like obligors who elect not to work. 326 N.J. Super. at 459. Persons serving a sentence of incarceration cannot opt to earn additional income while in prison. Ibid. On that ground, we held that courts should consider that N.J.S.A. 2A:17-56.23(a) precludes retroactive modification and that an incarcerated obligor may leave prison "burdened by an insurmountable obstacle" may work to deter payment of support in the future.
Halliwell, supra, 326 N.J. Super. at 457, 460. In Halliwell, we specified the procedure that courts should follow when faced with a request from an incarcerated obligor to modify support:
[I]n cases where the obligor has been sentenced to a lengthy period of incarceration and has no assets, [the better practice] would be to defer any action on the obligor's motion and to transfer the matter to the inactive calendar pending the obligor's release from the custodial sentence. Coincident with the obligor's release, defendant's motion would be considered after each party filed an updated case information statement. Utilizing the child support guidelines then in effect, the court could easily enter an order retroactive to the date of the obligor's initial motion divisible between current support for the future and an arrearage payment attributable to the period of incarceration subsequent to the date of filing of the obligor's modification motion but based upon the obligor's earning capacity [at the time of release].
We do not view defendant's seven-year term of incarceration as too brief to implicate the concerns for fairness and practicality that the procedure developed in Halliwell is designed to address. See id. at 458. As we reasoned in Halliwell:
Suspending the payment of support and postponing a decision as to future support eliminates the accrual of arrears, yet does not reward the criminal who is fully apprised that upon release the support obligation will be reinstated and, based upon his ability to pay, he will be required to pay an arrearage which will be established commensurate with his income.
The order is vacated and the matter is remanded for further proceedings ...