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Cushman v. Losasso


September 24, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-30-07.

Per curiam.


Submitted September 15, 2009

Before Judges Carchman and Ashrafi.

Plaintiff Jonathan Cushman appeals so much of the Family Part's order of August 26, 2008, that denied his motion for retroactive modification of his child support obligation. His appeal presents a single issue: whether work-related child care expenses should be treated as child support for purposes of applying the prohibition contained in N.J.S.A. 2A:17-56.23a against retroactive reduction of child support. The Family Part judge concluded that it should under the circumstances of this case, and we agree.

Our standard of review is plenary because the issue is a legal question of statutory interpretation and the relevant facts are not in dispute. See Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Cushman and defendant Vicki Losasso had a child born in November 2001. By orders dated October 25, 2004, and May 11, 2005, the Family Part ordered Cushman to pay child support of $443 per week to Losasso. According to the sole parenting worksheet prepared on October 25, 2004, the court calculated a basic child support amount of $364 based on the parents' combined net income of $2,158, of which 76.83% was attributed to Cushman and 23.17% to Losasso. Added to the basic child support was $208 per week for net work-related child care expenses and $15 per week for health insurance premiums. The total child support amount was $587. Cushman's percentage share of that amount was $451. Through adjustment for other dependent deduction, Cushman's final child support obligation was calculated to be $443 per week.

Cushman appealed, and we affirmed the child support orders in an unpublished opinion. Cushman v. Losasso, No. A-3078-04T2 (App. Div. January 25, 2007).

On September 1, 2007, the child began attending school and was no longer enrolled in a day care facility. Cushman filed a motion on June 8, 2008, to reduce his child support obligation, arguing changed circumstances. At the time of the motion, Cushman had substantial arrears in the payment of his child support obligation. He sought retroactive reduction to September 1, 2007, on the ground that Losasso did not pay for work-related child care expenses after that date.

The trial court heard argument on July 8, 2008, and reduced the weekly child support to $274. The court issued an order and written statement of reasons on August 26, 2008, denying Cushman's motion to apply the reduced amount retroactively from September 1, 2007. The court determined that the lower amount would apply as of June 8, 2008, the date that Cushman's motion was filed.

N.J.S.A. 2A:17-56.23a states in relevant 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.

The statute prohibits retroactive modification of child support. Cushman argues that net work-related child care expenses are not child support. We disagree, and we affirm the Family Part's decision on that issue substantially for the reasons stated in the written statement of reasons attached to the order of August 26, 2008, as supplemented by additional written reasons dated October 17, 2008, and submitted under R. 2:5-1(b).

We briefly add the following. In Keegan v. Keegan, 326 N.J. Super. 289, 294 (App. Div. 1999), we treated college expenses as potentially covered by the non-modification statute but held that the statute only prohibits retroactive reduction, not increase, of child support. The day care expenses in this case are analogous to college expenses but even more clearly part of the child support calculation. Their payment is necessary to allow the parent with primary residential custody to earn income that will determine her financial obligation to support the child. Net work-related child care expenses were explicitly part of the total child support amount Cushman was ordered to pay.

Cushman also cites Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995), for the proposition that the statute does not prohibit a credit against child support arrears. According to Cushman, $6,360.44 of the more than $30,000 in arrears that he owed should be attributed to child care expenses during the period from September 1, 2007, through June 8, 2008. He argues that payment of that amount would be a windfall to Losasso because she never had to pay for those child care expenses. He seeks to have $6,360.44 deducted from his child support arrears.

In Mahoney, we held that child support arrearages could be reduced by retroactive application of a credit for the time period following a judicial determination of the child's emancipation despite the provisions of N.J.S.A. 2A:17-56.23a. Mahoney v. Pennell, supra, 285 N.J. Super. at 643. Our reasoning was that the statute prohibits modification of child support for changed circumstances but that emancipation is different from changed circumstances because it eliminates the child support obligation entirely. Ibid.

That reasoning does not apply to the facts here. The child's starting school is a change of circumstances affecting the amount of child support. It is not a complete termination of the child support obligation. Other changed circumstances, such as a change in a parent's income, also could be pinpointed to a particular date in the past. See ibid. ("A change of circumstances, such as loss of a job, could . . . not be used as a basis to modify retroactively arrearages which already accrued under a child support order."). Retroactive reduction of the child support obligation, or a credit against arrearages, for such changed circumstances would render the non-modification statute ineffective.

Finally, plaintiff has not shown any equitable grounds for deviation from the statute.



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