Can an Unallocated Child Support Order be Retroactively Modified When There are Both Emancipated and Unemancipated Children?

In what appears to be a case of first impression, the trial court in Ocean County considered issues concerning the retroactive emancipation and modification of previously unallocated, court-ordered child support for parties with multiple unemancipated children.   

In the case of Harrington v. Harrington, the plaintiff-husband filed a post-judgment motion to emancipate the youngest child and sought retroactive modification of the unallocated court-ordered child support he had been paying.   Plaintiff and defendant had three daughters.  At the time of their divorce in 2012, the children were 20, 17 and 15 years old.  Plaintiff was ordered to pay $240/week in unallocated child support for the three children.   In September 2014, the parties agreed by consent that the two older children had become emancipated, however, the parties did not discuss reducing the child support payments, and plaintiff continued to pay the $240/week.   The youngest daughter was a senior in high school at this time and her plans for college had not yet been decided.   Following graduation from high school, the youngest daughter continued to remain with defendant-mother, but ultimately decided not to attend college. 

In approximately February 2016, plaintiff-husband filed a motion with the court seeking (a) emancipation of the youngest daughter as of July 2015 (shortly after her high school graduation) and (b) to retroactively modify the child support he had been paying from September 2014 to the present from $240/week to $80/week to account for the emancipation of the two older daughters.  Defendant consented to the emancipation of the youngest daughter as of September 2015, but opposed the retroactive modification of the child support from $240/week to $80/week from September 2014 to September 2015.

In addressing the motion, the court had to consider “legal principles that arguably lead to opposite conclusions.”  First, New Jersey has an anti-retroactivity statute, which generally prohibits retroactive modification of an existing child support order to a date prior to the filing date of a motion for such relief, or forty-five days earlier upon written notice. N.J.S.A. 2A:17-56.23a.  Here, plaintiff was seeking modification of child support dating back to September 2014, earlier than the statute allows.  Second, the court also had to consider case law holding that the anti-retroactivity statute does not prevent retroactive termination of child support when a child is retroactively emancipated.  

In reconciling the competing legal principles, the court ruled that:

1) When parties have multiple children covered under an unallocated child support order, and a child becomes emancipated, such emancipation is a change of circumstance, for which either party may seek review and modification of the existing unallocated child support order, and

2) In a situation where a parent seeks a retroactive modification of unallocated child support for multiple children based upon a child's emancipation while other unemancipated children remain, the court has the discretion whether to retroactively modify child support back to the date of a child’s emancipation, depending upon certain equitable factors set forth in this opinion.

The court cited law reciting that the Family Court in New Jersey is a court of equity and that, given the mixed nature of this circumstance, the solution must be fact-sensitive in nature, giving due consideration to various equitable factors and considerations, including but not necessarily limited to the following:

1) How much time has passed between the date of one child's emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non-custodial parent seeks to have returned by the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors relevant to the analysis?

Ultimately, the court in Harrington scheduled a hearing to analyze these factors, weigh the comparative equities, and determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon the prior emancipation of one or more children. This ruling is the first to provide some real guidance on the treatment of these types of modification applications, which are generally more complicated and can result in very varied relief.