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Bessinger v. Klich

August 17, 2010

KRISTEN BESSINGER, PLAINTIFF-APPELLANT,
v.
ANTHONY MICHAEL KLICH, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2023-97.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 3, 2010

Before Judges Graves and Yannotti.

Plaintiff appeals from an order entered by the Family Part on December 2, 2008, which reduced defendant's child support obligation to zero as of June 2005 and gave defendant credit for all child support arrears retroactive to that date. Plaintiff also appeals from an order entered on October 13, 2009, which denied her motion for reconsideration of the December 2, 2008 order. For the reasons that follow, we affirm in part and reverse in part.

This appeal arises from the following facts. The parties were married on July 15, 1989, and their marriage was dissolved by a judgment of divorce dated July 21, 1997. The judgment provided, among other things, that defendant would pay $100 per week for the support of the parties' two minor children.

On October 6, 2008, defendant filed a motion in the trial court seeking to eliminate his child support obligation retroactive to June 2005, on the ground that he had been declared to be disabled by the Social Security Administration (SSA), as of that time. The court granted defendant's motion and entered an order dated December 2, 2008, which eliminated defendant's child support obligation retroactive to June 2005. The order further provided that defendant would be given credit towards his child support arrears retroactive to June 2005.

Thereafter, plaintiff filed a motion seeking reconsideration of the court's December 2, 2008 order. Plaintiff asserted, among other things, that retroactive modification of the child support obligation was prohibited by N.J.S.A. 2A:17-56.23a. Plaintiff argued that, under the statute, modification of defendant's child support obligation could only be retroactive to October 6, 2008, the date upon which defendant filed his motion seeking elimination of his child support obligation.

The court entered an order dated October 13, 2009, denying plaintiff's motion. In a statement of reasons appended to the order, the court noted that defendant's income in 2005 had been less than $500. The court stated that according to defendant's case information statement, he did not have any savings or income until he began to receive social security disability payments in 2008. The court additionally noted that defendant had received a retroactive payment of social security disability payments (SSD) but the probation department had garnished the payment and applied it to defendant's child support arrears.

The court also stated that defendant had made several applications to reduce his child support obligation while his application for SSD benefits had been pending but those applications had been denied because the SSA had not rendered its decision on the application. The court wrote that, under the circumstances [e]quity mandates that the relief [reach] back to the date of June 2005, as the government determined that he could not work as of that date. [Defendant] had actively attempted to move before the court for modification, but through the vagaries of the governmental decision processes, was unable to provide the proof to the court.

The court reaffirmed it decision to modify defendant's support obligation retroactively to June 2005. This appeal followed.

On appeal, plaintiff argues that the trial court erred by eliminating defendant's child support obligation retroactive to June 2005. N.J.S.A. 2A:17-56.23a provides in pertinent part that:

[n]o payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of [N.J.S.A. 2A:17-56.23a], 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.

This statute "was enacted to insure that ongoing support obligations that became due were paid. A change of circumstances, such as loss of a job, could, therefore, not be used as a basis to modify retroactively arrearages which already accrued under a child support ...


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