May 2, 2008
RICHARD C. KOVACH, M.D., PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
LESLIE S. SQUIRES, M.D., DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1828-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges A.A. Rodríguez and C.S. Fisher.
In this appeal, we consider the contention of a child support obligor that he was entitled to the enforcement of an alleged implied agreement to reduce child support notwithstanding the prohibition on the retroactive modification of child support created by N.J.S.A. 2A:17-56.23(a). After careful consideration of the factual record, we affirm the trial judge's determination that there was insufficient evidence to find an implied agreement when it was only shown that there was an informal change in custody, an immediate reduction by the obligor in the payment of support based on that change, and the absence of an objection from the obligee for a nearly seven-month period preceding the obligor's motion.
The facts are uncomplicated. By way of a judgment of divorce entered in this matter in 1999, defendant Leslie S. Squires was granted custody of the parties' two sons, who were born in 1987 and 1992. Plaintiff Richard C. Kovach was required by the judgment to pay $6,250 per month in child support.
On May 15, 2006, after a disagreement with Leslie, the parties' eldest child moved to Richard's home. Richard then reduced his child support payments to Leslie by fifty per cent; Leslie neither objected nor consented. Richard, however, did not immediately seek court approval for his unilateral reduction in child support payments or an order memorializing the change in custody.
Instead it was not until December 4, 2006 that Richard filed a motion that sought an "update" of his child support obligation; he also sought Leslie's contribution to the eldest child's college expenses and the transfer of title to a motor vehicle, which was held by Leslie, to the child. Leslie filed a cross-motion, which sought, among other things, the payment of that part of the child support obligation that Richard had unilaterally stopped paying when the child moved to Richard's home in May 2006.
The trial judge agreed that the eldest child's move to Richard's home constituted a changed circumstance that warranted a reduction in his child support obligation. Applying N.J.S.A. 2A:17-56.23(a),*fn1 the trial judge also concluded that Richard was obligated to pay the full amount of support to Leslie from May 2006 until the filing of his motion on December 4, 2006. Richard argues that this aspect of the January 26, 2007 order should be reversed.*fn2 We disagree.
Although N.J.S.A. 2A:17-56.23(a) expresses a rather clear prohibition on the modification of child support to a date earlier than the filing of a motion to modify, exceptions have been found. For example, a child support obligation may be retroactively terminated to the date of a child's emancipation even though emancipation occurred prior to the filing of an appropriate motion. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). In that instance, we permitted the vacating of unpaid child support that had accrued after emancipation but before a motion was filed without doing violence to N.J.S.A. 2A:17-56.23(a), because we concluded that the order did not modify the obligation but instead only recognized that it had previously terminated by operation of law.
There have been other efforts to limit the bar to retroactive modification created by N.J.S.A. 2A:17-56.23(a). In Prikril v. Prikril, 236 N.J. Super. 49 (Ch. Div. 1989), a trial judge held that the termination of a child support obligation back to the date there was a change in child custody -- a date earlier than the filing of a motion to terminate support -- was appropriate despite the mandate of N.J.S.A. 2A:17-56.23(a). The trial judge in Prikril held that "a change of custody abrogates child support" and that a retroactive termination did not constitute a retroactive modification of child support because the obligation lacked viability once the child moved to the home of the obligor. 236 N.J. Super. at 51. We rejected this and overruled Prikril in Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 7 (App. Div. 1991), holding instead that "a child support obligation is not automatically abrogated when a child for whom support is owed moves into the home of the supporting parent."
By the same token, we did not entirely preclude the availability of relief in all such instances. Instead, we observed in Ohlhoff that "[w]hen the residence of a supported child changes, the parties may often expressly agree upon a modification of support arrangements[,] . . . [a]nd even without an express agreement the parties' course of conduct subsequent to the change may reflect an implied agreement to modify support which a court may enforce." Id. at 9. Recognizing that such express or implied agreements may be informally reached by the parties to a support obligation, we held that such agreements may be enforced even though that action would have the indirect effect of reducing or eliminating the support obligation to a date earlier than the filing of the motion.
In applying these standards to the present matter, we first acknowledge that Richard presented no evidence of an express agreement. Instead, Richard pinned his hope for relief on his claim that an implied agreement can be found from these circumstances: the change in custody; his own unilateral reduction in cutting his child support payments in half; and Leslie's failure to object to the reduction until she opposed Richard's motion, and filed her own, nearly seven months after the child moved to Richard's home. There is no doubt that the circumstances here bear some similarities to those in Ohlhoff, but they also differ in one important respect -- the period of time that elapsed from the change in custody to the formal request for relief in Ohlhoff was nearly a year longer than that which occurred here.*fn3
Experience reveals that it is not uncommon for teenage children of divorce to seek out one parent's home when displeased with the home of the other. It is also not uncommon for the child to make such a move only to later change his or her mind and seek a return. Because such moves -- often the choice of the child rather than either parent -- are often spontaneous and precipitous, their occurrence alone should not govern the parties' rights and obligations. Only when a change has obtained a degree of permanency, fixed through a significant passage of time, should there be found a basis for an implied agreement. So viewed, we are satisfied that the time that elapsed prior to the filing of Richard's motion does not necessarily reflect a fixed change that would warrant a finding that the parties had impliedly agreed that Richard would not be obligated to pay the child support that accrued during that interval.*fn4 Moreover, the finding of an implied agreement on less would fail to account for the fact that a child support obligee does not immediately cease bearing the expenses required to support the child the moment the child leaves the home to reside with the obligor.
We recognized all this in Ohlhoff:
A child's change of residence from a custodial to a non-custodial parent is seldom permanent at the time of its inception, especially when the change occurs on the initiative of a teenager who believes that he or she will be happier living with the other parent. Generally, some time must elapse before the child can decide whether the new living arrangement really will be more to his or her liking and before the custodial parent can decide whether to accept the change on a permanent basis. In the interim, the custodial parent ordinarily must continue to bear the expense of housing which includes a room for the child. Furthermore, the parents may have different perceptions of the permanency of a child's change of residency. The non-custodial parent into whose home the child has moved may consider the change to be permanent immediately while the custodial parent may continue to believe even a substantial time afterwards that the child will eventually return to that parent's home. [Id. at 7.]
We continue to adhere to these views and find no cause to interpret our Ohlhoff holding as expansively as urged by Richard. Indeed, the rather clear and forceful prohibition on retroactive modification contained in N.J.S.A. 2A:17-56.23(a) demonstrates that the basis for a finding of an implied agreement to modify child support, which a court may equitably enforce, should be narrowly construed for all the reasons outlined in Ohlhoff.*fn5 Accordingly, after carefully reviewing the factual assertions presented to the trial judge in the light most favorable to Richard, we find no substance in his claim of an implied agreement to reduce the child support obligation when the child moved to his home in May 2006. We, thus, affirm that part of the order of January 26, 2007, which required Richard's payment to Leslie of that portion of the child support obligation that Richard failed to pay between May 2006 and the filing of his motion, and, also, affirm the order of March 2, 2007, which denied Richard's motion for reconsideration.
Leslie filed a cross-appeal, arguing that the trial judge erred in determining that Leslie should bear her own counsel fees. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).