On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-3015-97.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Parrillo and Ashrafi.
Defendant Hamid Shabazz appeals from a January 9, 2009 order of the Family Part allowing his child support obligation to accrue during his incarceration, but suspending its enforcement during this period. We affirm.
We glean from the sparse record provided that defendant is the father of a daughter born in 1996. Ten years later, a Family Part order dated August 3, 2006, established defendant's child support arrears at $6,132.08 as of that date, and set his weekly child support obligation at $96, including $35 towards arrears. At the time the order was entered, defendant was incarcerated, serving a twenty-three year prison term that commenced on August 18, 2005. As such, the August 3, 2006 order of the Family Part provided that enforcement of the obligation would be suspended and "family court detainers to issue [but] not to interfere [with] halfway house or similar program[s]."
Following consideration of defendant's December 18, 2008 motion to suspend his child support obligation, "arrears and all detainers relating thereto," the Family Part judge issued an order on January 9, 2009, which allowed defendant's child support obligation to "continue to accrue for the period of his incarceration," but on account of the length of his imprisonment and lack of assets, suspended enforcement of the obligation during this time. The order also specifically provided:
Detainer(s) lodged against Defendant shall not prevent either his transfer to a halfway house/similar program or Defendant's ability to seek post-confinement employment.
On appeal, defendant contends it was error not to suspend all his obligations. Based on the record provided, we discern no error in the Family Part's determination.
The right to child support belongs to the child. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Child support is a continuous duty of both parents, who cannot evade their duty by voluntarily reducing their income, regardless of any good or bad faith in doing so. Halliwell v. Halliwell, 326 N.J. Super. 442, 455, 458 (App. Div. 1999).
To be sure, "imprisonment of an obligor is quite different from an obligor's failure to remain employed or an obligor's choosing to change employment resulting in a diminution of income either permanently or temporarily." Id. at 449. Halliwell addressed the effect of a support obligor's incarceration on a pre-incarceration support order, where the obligor had been sentenced to a lengthy term of incarceration and had no assets. Id. at 445. Of course, here, the August 3, 2006 support order setting arrearages at $6,132,08 and weekly child support at $96 was entered after defendant's incarceration commenced; defendant's actual prison release date is unknown; and the only proof of defendant's lack of assets is his certification accompanying this appeal. Moreover, there is no record evidence that defendant ever appealed from the August 3, 2006 Family Part order.
In any event, Halliwell held that a court should defer any action on a motion for modification of child support filed by an obligor who has been sentenced to a lengthy period of incarceration and has no assets, and transfer the matter to the inactive calendar pending the obligor's release from the custodial sentence. Id. at 457. Coincident with the obligor's release, his motion would be considered after each party has filed an updated case information statement. Ibid.*fn1
Significant for present purposes, the Halliwell court allowed the defendant's child support obligation to continue and the arrears to accrue, but held that the defendant would not be in violation of litigant's rights, Rule 1:10-3, during his continued incarceration and that additional enforcement proceedings would not be necessary. Id. at 446. But see Kuron v. Hamilton, 331 N.J. Super. 561, 576 (App. Div. 2000). We perceive no meaningful difference in the order here in issue, which stayed enforcement of the obligation during defendant's incarceration, but allowed the child support obligation to continue and arrears to accrue. Insofar as defendant's exposure to the risk that any modification of child support upon release will not be retroactive to December 18, 2008 - the date of his filing the present motion, see N.J.S.A. 2A:17-56.23a, we are not convinced that transfer to a so-called "inactive calendar" is the only means of avoiding the statutory prohibition. We assume the Family Part's order of January 9, 2009, was without prejudice to defendant renewing his modification motion upon release from incarceration, in which event the motion should be accorded the same status, in terms of retroactivity, as if transferred to an "inactive list." However, we need not decide that issue dispositively since no release date has been provided and, in fact, defendant has represented he faces the prospect of additional prison time for other convictions.
Defendant also claims that unless the detainers lodged against him based on his non-payment of support are lifted, he could not obtain minimum custody status, work release, or participate in other rehabilitative activities. Here again, we look to the court's January 9, 2009 order, which specifically bars such adverse consequences. We, therefore, ...