On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-111-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012 -
Before Judges Baxter and Nugent.
Defendant Thomas Vaughan appeals from a January 28, 2011 Family Part order that granted his motion to reduce his child support obligation to the sum of $198 per week, but made the reduction retroactive to only June 15, 2010, even though he filed his motion on July 20, 2009. We agree with defendant's contention that the judge's refusal to grant retroactive modification back to July 20, 2009, incorrectly disregarded N.J.S.A. 2A:17-56.23a, which entitles an obligor to the benefit of retroactivity back to the date the motion was filed. We also agree that the judge should not have ignored the parties' written agreement that any child support reduction would be retroactive to June 2, 2009. We reverse the order under review, and remand for further proceedings to determine the appropriate method of implementing the approximately $20,000 credit that will result.
Defendant and plaintiff Cheryl Vaughan were divorced on December 6, 1999. During the parties' marriage, defendant became a member of the New York Stock Exchange, and by 2005 earned a gross income of $405,226 per year. Based upon that income, a judge increased defendant's child support obligation to $3662 per month, or $851.63 per week, for the parties' two sons. At approximately the same time, trading on floor of the Stock Exchange changed, as the use of an electronic trading system to conduct stock trade transactions reduced the need for brokers, such as defendant, on the floor.
Due to continued downsizing, defendant lost his job on June 17, 2007 and received his last paycheck two months later. His efforts to obtain other employment over a two-year period were unsuccessful. Defendant eventually applied for, and began receiving, unemployment compensation benefits. On October 22, 2008, defendant contacted plaintiff, asking her to agree to a reduction in his child support obligation. Defendant received no response.
In May 2009, by which time plaintiff had retained counsel, the parties and their attorneys agreed to meet at a four-way conference in an effort to negotiate an amicable reduction in defendant's child support obligation. At the same time, wary of the "anti-retroactivity statute," N.J.S.A. 2A:17-56.23a, defendant's attorney contacted plaintiff's attorney proposing that any agreement the parties might reach as the result of their impending conference, would have retroactive effect to June 2, 2009. Through her attorney, plaintiff agreed. In relevant part, plaintiff's counsel's June 3, 2009 letter stated:
I consent to your proposal that any agreement to be reached would be retroactive to June 2, 2009.
Ultimately, however, the four-way conference was unsuccessful, and the parties were not able to reach an agreement. On July 20, 2009, defendant filed the motion that is the subject of this appeal. He sought a reduction in his monthly child support obligation due to changed circumstances, namely, his loss of employment. On the return date of the motion, August 28, 2009, the judge determined that defendant's motion required a plenary hearing, which was scheduled and then adjourned on two occasions. Due to the judge's heavy workload, the matter was transferred to a different judge, who scheduled a hearing for June 15, 2010. The hearing on that date was not a plenary hearing, but was instead limited to oral argument. On July 19, 2010, the judge issued an order that reduced defendant's child support obligation to $300 per week based upon imputed income to defendant of $100,000 per year and income to plaintiff of $52,900. Additionally, the judge's July 19, 2010 order vacated all then-existing child support arrears, and denied defendant's request to retroactively reduce his child support obligation back to the date he filed his motion, July 20, 2009.
On August 3, 2010, defendant moved for reconsideration of the July 19, 2010 order, arguing that the judge incorrectly applied the child support guidelines, see Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A (2012), and incorrectly refused to give retroactive effect to the modification of child support. Defendant argued that because the parties had agreed, at the time of the June 2009 four-way conference that any relief granted by the court would be given retroactive effect, the judge was obliged to enforce the parties' agreement and retroactively reduce the child support order back to June 2, 2009.
Defendant's August 3, 2010 motion for reconsideration was not heard by the judge who issued the July 19, 2010 order. Instead, a third judge considered the matter, and on October 1, 2010 issued an order: 1) modifying defendant's child support obligation to $198 per week; 2) requiring that the reduction be retroactive to June 2, 2009, in keeping with the parties' agreement prior to the four-way conference; 3) directing the Probation Department to adjust its records to reflect "the appropriate credit based upon the retroactive nature and date of the modified support obligation"; 4) issuing defendant a credit of $20,016 resulting from his overpayment of child support; and 5) directing that the $20,016 credit for the overpayment of child support could not be used to reduce any of defendant's future child support obligations.
Less than three months later, on December 27, 2010, plaintiff moved for an increase in child support. Defendant cross-moved seeking an order directing the Probation Department to issue a credit in the amount of $22,293, which defendant asserted was the correct amount of the credit to which he was ...