On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-772-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
The narrow issue on this appeal concerns whether the Family Part judge committed reversible error in his choice of an effective date for the reduction of a parent's child support obligation. In his order now under review, the judge specified an effective date that was later than the date the parent obligor had desired. We perceive no reversible error in this timing decision, and thus affirm the judge's ruling.
Appellant Kim Internoscia ("the mother") and respondent David Internoscia ("the father") were married in 1997. They have twin daughters, who were born in March 2002. The parties were divorced in August 2005, pursuant to a consensual Final Judgment of Divorce ("FJD").
The parties were recently before us in a separate appeal by the mother involving issues of child custody and parenting time.*fn1
In that prior appeal, we sustained provisions in an order the Family Part issued on October 20, 2006, which maintained the father's primary custody of the twins. The custody order was consistent with the recommendations of a court-appointed expert, who had identified certain behavioral and substance abuse concerns about the mother and her present boyfriend, and who had opined that the father was the more suitable primary caretaker. We also upheld the trial court's restrictions on the children's contact with the boyfriend.
The child support issues now before us stem initially from a consent order that the parties entered into on April 7, 2006. Among other things, the parties agreed in that order that the mother would have one overnight visit with the twins each week. The parties further agreed that the mother would pay the father $125 weekly in child support, a sum that was less than the amount that the mother would have been obligated to pay under the State's child support guidelines, as applied to the parties' respective incomes. The father also agreed to waive any child support for a transitional period of six months. Therefore, the mother's $125 weekly support obligation, in the form of direct payments to the father, was scheduled to commence on September 28, 2006. The agreement also contemplated that the mother could seek to increase the frequency of her overnight visits, provided that she relocated to a closer residence within thirty miles of the father.
Following the April 2006 consent order, the mother moved to an apartment about five blocks from the father's home. The father then informally permitted her to have more contact with the children. By May 2006, the children were staying at the mother's residence three times per week. The mother did not, however, move at that time to modify the child support agreement, so as to reflect her added expenses associated with the increased overnight stays. Instead, the mother moved to gain primary custody of the children, an application that the trial judge denied in October 2006 and we since affirmed in the separate appeal.
In the meantime, the September 28, 2006 trigger date arrived for the mother's agreed-upon $125 weekly support payment. She did not begin making those payments. Instead, the parties' attorneys engaged in settlement discussions about modifying the ongoing support. Those discussions did not result in an agreement.*fn2
Eventually, the mother filed a motion in April 2007 to reduce her child support obligation to $40 weekly, reflecting her extra parenting time. The mother also sought to have that reduction made retroactive to September 28, 2006, the date on which her support obligation was originally supposed to begin.
After examining the updated circumstances, including the mother's more frequent overnights with the twins, the trial judge entered an order on May 25, 2007, granting a reduction of the child support to $49 per week.*fn3 The order made that decrease retroactive to April 18, 2007, the date on which the mother had filed her reduction motion. The judge denied, however, the mother's request for additional retroactive treatment back to September 2006. The judge also denied the father's cross-motion for counsel fees.*fn4
In designating the mother's filing date as the effective date for the downward adjustment, the judge relied upon the so-called anti-retroactivity statute, N.J.S.A. 2A:17-56.23a. That statute generally precludes the reduction of child support after it has already become due for payment, except as to the date on which a motion for modification is filed, unless a child has ...