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Robert Kirsch v. Cheryl M. Gilan-Slansky


December 14, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-950-95.

Per curiam.


Submitted November 8, 2010 - Decided Before Judges Kestin and Newman.

Defendant, Cheryl Kirsch, appeals from an order entered on September 10, 2009 and from the February 1, 2010 order on her motion for reconsideration, eliminating plaintiff Robert Kirsch's child support payments on the ground that plaintiff obtained custody of the parties' only child on January 15, 2009, by virtue of an order of the New York Family Court. In the order of September 10, 2009, plaintiff was also awarded a total of $10,006.97, payable by defendant in $25 weekly installments for reimbursement of child support overpayments. In a subsequent order of February 1, 2010, as a result of defendant's motion for reconsideration, the court affirmed the order terminating plaintiff's child support obligation as of January 15, 2009, and vacated paragraph two of the September 10, 2009 order crediting plaintiff with $10,006.97, payable by defendant for plaintiff's overpayment of support. Defendant appeals from the orders terminating plaintiff's child support obligation. Plaintiff appeals from the order of February 1, 2010, vacating the credit of the $10,006.97 child support overpayment. We affirm as to defendant's appeal and reverse as to plaintiff's cross-appeal, and remand for the trial court to reinstate the credit of $10,006.97, payable in weekly amounts of $25 by defendant.

The relevant facts may be summarized as follows. The parties were divorced by final judgment of May 9, 1996. Defendant was granted residential custody of the parties' daughter, Rena, who was born in 1992, and is presently eighteen years old. Initially, the parties had joint legal custody.

By court order of January 15, 2009, in Nassau County, State of New York, plaintiff was granted residential custody of the parties' daughter. Plaintiff was granted sole custody "up to and including July 14, 2009." By order dated June 11, 2009, custody was extended to December 10, 2009. In ordering a change of custody, the New York court also provided an order of protection establishing defendant's limited visitation with her daughter to twice a month for one and one-half hours each time at a restaurant. The daughter lives in Teaneck, New Jersey with plaintiff, while defendant lives in Woodmere, New York.

Despite the order eliminating the basis for any child support obligation from January 15, 2009, plaintiff did not resort to self-help, but continued to pay child support. On August 13, 2009, plaintiff filed a motion to eliminate his child support obligation retroactive to January 15, 2009, and sought a credit for the child support that was paid during this interim period and beyond.

The trial court agreed with plaintiff's position and eliminated the child support obligation to January 15, 2009, corresponding to the date custody was awarded to plaintiff by the New York court. The court also granted a credit to plaintiff of $10,006.97, reimbursable by defendant at $25 per week.

On September 29, 2009, defendant sought reconsideration of the court order. As previously noted, the court reaffirmed its position that the support obligation terminated on the date the New York court awarded custody to plaintiff, but vacated the credit of $10,006.97.

On appeal, defendant presents the following argument:

There exists in this case a "Pre-existing Court Order" with a Pre-existing Financial Duty that is a matter of law, based on statutes, Rules of Evidence and Procedure, and body of relevant case law. This Order had a highly anticipated outcome, resulted from an integrated agreement with significant consideration, was greatly relied upon and is entirely valid and enforceable.

Defendant contends that the original court order of October 30, 1998 was controlling. In that order, it provided as follows:

At any future time, in the event the minor child of the marriage, Rena, shall reside with the Plaintiff for more than ten consecutive days, then, in that event, there shall be no child support reduction the first ten days, but there shall be a forty percent reduction in support for every consecutive day thereafter.

Defendant points out that the same order was reviewed again in an order entered on June 28, 2004, in which it was clarified that "Rena's residing at sleep away camp during plaintiff's portion of his summer parenting time with Rena does not constitute residing with plaintiff for more than ten days, as provided for in the October 20, 1998 order." Defendant's position is that this pre-existing court order was fair and equitable and was intended to last throughout the child's minority until emancipated. Defendant contends that the court did not address this provision, which was within the reasonable expectations of the parties. Defendant disputes there was any change in circumstances that was not reflected by the parties in the final judgment of divorce.

Defendant's argument is beside the point and is not relevant to what has subsequently occurred by the action of the New York court in awarding custody to plaintiff. There has been a change in court-ordered responsibilities. Plaintiff, who has sole custody of the parties' daughter, has the obligation to support her. He should not have to continue to pay sixty percent child support when the daughter is living with him full time.

To the extent that defendant argues that N.J.S.A. 2A:17-56.23a prohibits a retroactive modification of child support, we disagree. The retroactive modification beyond the date of filing of a motion for a reduction of child support does not address the termination of child support. In Prikril v. Prikril, 236 N.J. Super. 49, 50-51 (Ch. Div. 1989), a change of custody occurred when custody was changed from the mother to the father. The mother contended that the court was "statutorily prohibited from retroactively modifying the child support order." Id. at 51. The court commented that it was not "modifying any viable order at all," but rather "a change of custody abrogate[d] child support." Ibid.

Ohlhoff v. Ohlhoff, 246 N.J. Super. 1, 6 (App. Div. 1991) overruled Prikril. There, we disagreed with the essential premise of Prikril that a child support obligation is automatically abrogated, and consequently that support may be unilaterally withheld without court authorization, if a child moves from the home of the parent to whom support is owed into the home of the supporting parent. [Ibid.]

Here, plaintiff's conduct was fully in compliance with Ohlhoff. Plaintiff did not withhold his support payments, but continued to make them until the court authorized termination of those payments. In Ohlhoff, we did not need to address reimbursement of support payments made after custody was formally changed.

In a comparable context, a parent can successfully seek termination of a child support obligation retroactive to the date on which the child can be deemed emancipated, pursuant to either the parents' divorce judgment or the rule of law on emancipation, since emancipation vitiates any legal duty to support the child. Without a duty to support, child support need not be paid. See Bowens v. Bowens, 286 N.J. Super. 70 (App. Div. 1995); Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995); Thorson v. Thorson, 241 N.J. Super. 10, 11-12 (Ch. Div. 1989).

So too here. Affording plaintiff a credit retroactive to the date of the New York custody order, without implicating N.J.S.A. 2A:17-56.23a, is akin to emancipation, where a court-ordered change in custody ended the father's obligation to support the daughter, see, e.g., Mahoney, supra, 285 N.J. Super. at 643.

Rule 4:50 is applicable, which allows for relief from a final judgment or order. Here, plaintiff's obligation has been discharged as a matter of law by the prior change of custody. The application for termination of support was to formalize the status that plaintiff assumed when custody was changed by the New York court. We are persuaded that the anti-retroactive child support modification statute has no application in these circumstances.

With regard to plaintiff's cross-appeal, we discern no basis for the court vacating its prior order crediting plaintiff with $10,006.97 and requiring defendant to reimburse plaintiff at $25 per week. Indeed, no reasons were provided why the court vacated this credit. Plaintiff never resorted to self-help when his child became his sole responsibility, but continued to make the requisite child support payments. He even continued doing so when the court in New York declined jurisdiction on this issue in July 2009, believing that issue had to be addressed in New Jersey where plaintiff still resided. That decision prompted plaintiff to seek relief in our court. Nonetheless, he continued making payments until the court ordered otherwise in the order of September 10, 2009.

Affirmed as to the direct appeal, reversed as to the cross-appeal, and remanded for entry of an order consistent with this opinion.


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