SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-004223-93T1
ROBERT BOWENS,
Plaintiff-Appellant,
v.
INGRID LEE BOWENS,
Defendant-Respondent.
_________________________________
Argued November l5, l
995 Decided December 20, 1995
Before Judges Shebell, Stern and Newman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County.
William J. Volonte argued the cause for
appellant (Reitman Parsonnet, attorneys,
Mr. Volonte, of counsel and on the brief).
Ingrid Lee Bowens, respondent, did not
file a brief.
The opinion of the court was delivered by
NEWMAN, J.A.D.
Plaintiff, Robert Bowens, and defendant, Ingrid Lee Bowens, were divorced on June 27, l986. Their son, Darryl, was born on May 20, l970. Plaintiff was ordered by the judgment of divorce to pay $20 per week to defendant as child support for Darryl who became eighteen on May 20, l988. Plaintiff filed a motion on September 28, l993 seeking the elimination of all support arrearages incurred following Darryl's eighteenth birthday. The
motion judge hearing this uncontested matter concluded that
Darryl was emancipated when he became eighteen on May 20, l988,
but that he was constrained by the anti-retroactivity provisions
of N.J.S.A. 2A:l7-56.23a from eliminating the arrearages.
Plaintiff argues that the anti-retroactive child support
modification statute does not bar the elimination of arrearages
based on the predetermined event of emancipation that occurred
before the effective date of N.J.S.A. 2A:l7-56.23a. We agree and
reverse.
N.J.S.A. 2A:l7-56.23a in its original form provided in
pertinent part:
No payment or installment of an order for child
support, or those portions of an order which are
allocated for child support, shall be retroactively
modified by the court except for the period during
which the party seeking relief has pending an
application for modification, but only from the date of
mailing the notice of motion to the court or from the
date of mailing written notice to the other party,
either directly or through the appropriate agent. The
written notice will state that a change of
circumstances has occurred....
This statute, enacted on August 22, l988 and made effective 90 days later, was designed to comply with federal legislation, the Omnibus Budget Reconciliation Act of l986, P.L. 99-509, l00 Stat. l874 to 2078, codified at 42 U.S.C.A. § 666(a)(9)(C). The federal law provides that, as a condition of receiving federal funding for collection of child support arrearages, states must conform with various federal standards governing child support. Those requirements include that child support obligations may not
be subject to retroactive modification on and after the date that
they are due.
42 U.S.C.A.
§666(a)(9)(C).
In Ohlhoff v. Ohlhoff, 246 N.J. Super. l (App. Div. l99l),
we addressed the retroactivity of N.J.S.A. 2A:l7-56.23a, and
concluded that the statutory provision represented a significant
change in New Jersey practice where retroactive modification of
support and vacation of arrearages on equitable principles were
long permitted, and, therefore, applied the statute
prospectively. Only child support which became due after the
effective date of November 20, l988 was to be affected. Ohlhoff
v. Ohlhoff, supra, 246 N.J. Super. at l0-ll.
Subsequently, the Legislature amended N.J.S.A. 2A:l7-56.23a
to make its prohibition on retroactive modification of child
support apply to child support payments that become due both
before and after the effective date of the amendment, February
l8, l993. The statute as amended, with the additions underlined,
reads as follows:
No payment or installment of an order for child
support, or those portions of an order for child
support established prior to or subsequent to the
effective date of P.L. l993, c. 45 (c.2A:l7-56.23a),
shall be retroactively modified by the court except
[(portion deleted here)] 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. The written notice will state that
a change of circumstances has occurred....
The amendment thus superseded Ohlhoff's holding that the arrearages at issue began accruing before the effective date of
the statute, and so Ohlhoff does not make the statute
inapplicable here.
In Ohlhoff, we cited Thorson v. Thorson, 24l N.J. Super. l0
(Ch. Div. l990). Ohlhoff, 246 N.J. Super. at 8. Thorson held
N.J.S.A. 2A:l7-56.23a inapplicable where child support has been
terminated upon the emancipation of the child in accordance with
the terms of the judgment of divorce.
Unlike Thorson, the divorce judgment in this case did not
provide for the event of emancipation. However, a different
result is not required because the absence of a specific
provision for emancipation in a divorce judgment does not take
away from the fact that it is implicit in such a judgment that
the support obligation terminates upon emancipation.
Emancipation remains a fact-sensitive issue, reserved to the
judiciary, where disputed, for resolution. Newburg v. Arrigo,
88 N.J. 529, 543 (l982). The minor's emancipation, as found by the
motion judge, occurred when Darryl attained age l8 on May 20,
l988. Although the judicial declaration of emancipation was not
announced on or near the date of occurrence, that should not
detract from when emancipation occurred. We held in Mahoney v.
Pennell, Docket No. A-003688-94T5 (App. Div. l995), decided this
same day, that N.J.S.A. 2A:l7-56.23a, which precludes retroactive
modification of a child support order, does not bar the
cancellation of child support arrearages which accrued subsequent
to the date of the emancipation of the minor. Since Darryl was
found by the motion judge to be emancipated when he became l8 on
May 20, l988, those unpaid arrearages accruing from the
emancipation date shall be canceled.
Reversed and remanded for modification of the order of
December 22, l994 consistent with this opinion.