U.S. Military Dad Petitions For Retroactive Relief From Child Support Obligation
- August 4, 2014
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On appeal from the Union County Family Court in, Kent v. Kent, the Defendant, Joel Kent, appealed from a 2013 Court Order denying him relief from prior Orders that enforced his child support obligation over his protest that a portion of his obligation was allocated for work-related child care expenses during a time when the Plaintiff was unemployed. According to the Defendant, because he was in the military he was entitled to retroactive relief of his obligation and a recalculation of his child support figure. The Appellate Court affirmed the decision of the Family Court. The Defendant is an active member of the United States Navy and has been since 2001, before his marriage to the Plaintiff. The parties got married in 2003 and had one child during their marriage who was born in 2004. The parties then divorced in Virginia in 2006 and mutually agreed to a child support amount. In 2011, the Plaintiff filed a Motion to Enforce Litigant’s Rights in New Jersey, where she was now living with the parties’ child. Virginia relinquished jurisdiction to New Jersey in 2012 and a New Jersey Family Court judge delayed a hearing on the issue of enforcement because the Defendant was serving in the Navy and could not attend. The Motion was finally heard on the papers on January 4, 2013 after both parties submitted documents reflecting their arguments. At that time, the judge ordered the Defendant to bring current his child support arrears and pay it through the Union County Probation Department. The Defendant requested that the judge reconsider his Order, which he did. Specifically, the judge reconsidered the Defendant’s application for additional credit toward his arrears and the return of $11,028.85, which represented a portion of child support allocated in Virginia for the Plaintiff’s work-related child care costs that accumulated while the Plaintiff was unemployed. The Defendant became aware that the Plaintiff was unemployed for two years and yet she still collected $370.51 a month from the Defendant as a contribution to the total $670.00 monthly work-related child care expenses that was used to calculate the child support obligation. The judge granted the Defendant $211.90 credit for overpayment of arrearages but denied his application for the work-related child care amounts. The Defendant appealed. The Appellate Court determined that the Defendant had no basis for defending against the enforcement Motion beyond the relief that he was granted because the Defendant could have moved for a recalculation of his child support obligation due to changed circumstances at any time. The court also found that it did not need to determine whether the Defendant’s rights under the Servicemembers’ Relief Act (U.S.C.A. 521(g)(1)) and Bernhardt v. Alden Cafe, 374 N.J. Super. 271, 281-82 (2005) were violated. According to the court, “The spirit of the federal and New Jersey Acts certainly encompasses the public policy to give service members a fair opportunity to be heard in court in every proceeding,” but here in deference to the Defendant’s request as an active service member, the judge delayed the Motion for more than a year before rendering a decision on the papers and listened to the Defendant’s argument and considered his Cross-Application. Newman v. Bd. of Review, 434 N.J. Super. 483, 489-90 (App. Div. 2014). Finally, the Defendant’s Cross-Application to require the Plaintiff to refund the portion of child support that was attributable to work-related child care costs was properly denied because child support cannot be retroactively diminished. N.J.S.A. 2A:17-56.23a. Disputes regarding child support can be of the most important in family law because child support money is critical for the welfare of the children of divorced parents. If you are involved in a child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child support, post judgment modification, alimony, divorce, or other family law matters in New Jersey visit Darlingfirm.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.