Being Proactive with Retirement Planning: New Jersey Alimony Statute Permits Court to Terminate or Modify Alimony Obligation based on Obligor’s Prospective Retirement Date

By Robert B. Kornitzer, Esq. and Zach Levy, Esq.

While one should always seek to responsibly manage their finances throughout their entire life, at no point is prudent financial planning more critical than at the time of retirement. As a result of leaving the workforce one often loses a significant source of their income, and therefore one must think carefully about all their expenses and debts (e.g. mortgage, food, alimony, etc.) that they will continue to have after retirement, and ultimately decide whether they can actually afford to retire at a certain age. Therefore, the age of retirement is a natural time for an alimony obligor to seek termination or modification of their alimony obligation to their former spouse based on their changed financial circumstances, and in consideration of the factors set forth in New Jersey’s Alimony Statute, N.J.S.A. 2A:34-23(j).

Of course, an obligor is free to wait until the time they actually retire to petition the court to have their alimony terminated or modified, but this approach comes with one notable drawback. Indeed, if the obligor first retires and then seeks termination of their alimony obligation, they are taking the chance that the court will disagree with their position and decline to modify the alimony obligation. An outcome like this can place a heavy financial burden on the alimony obligor, as they must continue to make alimony payments notwithstanding their reduced income. Thankfully, this State’s Legislature provided an alternative approach to have one’s alimony obligation modified in consideration of their retirement. To avoid situations like the above, the New Jersey Alimony Statute actually permits alimony obligors to petition the court in advance of retirement to have their alimony obligation terminated or modified. The court can then make ruling as to what the alimony obligation will be at the future date of retirement based on the reasonably anticipated post-retirement circumstances of the parties. Accordingly, the alimony obligor will be able to know in advance of retirement whether they must continue with their alimony obligation, or whether the alimony obligation will be reduced or terminated. This can be extremely important information when it comes to retirement planning; the obligor will be able to whether they must be financially capable of affording continued alimony payments before actually leaving the workforce. As explained by the Honorable L.R. Jones, J.S.C., in the recent case of Mueller v. Mueller:[1]

The amendment permitting a court to presently consider an obligor’s prospective retirement, as opposed to an actual retirement, is logically designed to avoid placing an obligor in a “Catch 22” financial situation. Specifically, if an obligor is considering the possibility of retirement in the near future, he or she logically benefits from knowing in advance, before making the decision to actually leave the workforce, whether the existing alimony obligation will or will not change following retirement. Otherwise, if the obligor first retires and unilaterally terminates his or her primary significant stream of income before knowing whether the alimony obligation will end or change (and if so to what degree, i.e., termination vs. modification), then the obligor may find him/herself in a precarious financial position following upon such voluntary departure from employment if the court, for whatever specific reason, does not terminate or significantly reduce the existing alimony obligation.

For this reason, when an obligor reasonably approaches retirement age, and files a motion setting forth a specific proposed plan for a prospective and projected retirement in the near future, a court may now address and consider the merits of same under the amended alimony statute, and render a prospective ruling regarding a proposed termination or modification of alimony, to take effect upon the obligor’s actual retirement in accordance with the proposed plan.

At the end of the day, alimony obligors should consider whether making use of the Alimony Statute’s prospective retirement provision is right for them. Having advanced knowledge of whether one will need to be able to afford alimony payments after leaving the workforce can be critical knowledge when it comes to planning for retirement.

[1] Opinion available at http://www.judiciary.state.nj.us/decisions/Mueller%20opinion%20X.pdf

Can I Pay Less Child Support While I Go Back To School To Earn A Degree?

By Robert B. Kornitzer, Esq. and  Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Child support obligations are not set in stone, and courts have broad discretion to set aside or modify such obligations for several reasons, including simply because the circumstances of one or both of the parents have changed since the support order was originally entered. A parent losing their job or suffering a significant reduction to their income are likely good reasons for the court to modify a support order, but it is also well established that relief from support obligations should not be granted if a party is voluntarily unemployed. The same rule is also applicable in instances when a parent is voluntarily under-employed; for example, a highly skilled computer programmer who could earn $100,000 per year in that field choosing to work as a substitute teacher instead and earn just $30,000 per year.  Most would probably agree that a parent should not be permitted to escape their child support obligation because they made the decision not to work or not work up to anywhere near their full potential. Notwithstanding this general rule, consider the following: A husband and wife have a child; upon divorce, the parents enter a consent order requiring the husband to pay the wife an amount each month for child support; a few years later, the husband, who is still in only in his late-twenties and working two jobs, realizes that neither of his jobs have any opportunity for growth and he has no long-term future with either company; the husband concludes that if he is to establish a well-paying career and be a good provider for his child he must earn his Bachelor’s Degree; therefore, in order to better himself and provide a better future for his child, the husband decides to leave both jobs in order to attend college full time to earn a degree; the husband believes attending school full time, rather than keeping one or both jobs and attending school part time, is the better choice for himself and the child because he will be able to earn his degree much faster, and therefore be able to generate more income for the child’s benefit in a shorter period of time; accordingly, the husband asks the court to have his child support obligation substantially reduced while he is attending school and not working.

A request to have a child support obligation modified based on the above facts seems a lot more legitimate and genuine than when the same request is made by a parent who doesn’t want to be employed simply because they are lazy, unmotivated, or just don’t care. Perhaps many would agree that reducing child support on a short term basis in order to permit a parent to earn a college degree, which will likely result in that parent earning a much higher income, is actually in the child’s best interest, albeit for the long term.  After all, in this day and age it is very difficult to establish a well-paying career for one’s self without (at least) a Bachelor’s Degree, and having a higher income will be very helpful for paying expenses such as the child’s college education and other necessaries.   Recently, however, a court rejected, and the Appellate Division affirmed, an application to temporarily reduce child support based on very similar circumstances to the above hypothetical in the case of Zavaglia v. Bray. The trial court noted that the husband’s loss of employment while he would be attending college was not only voluntary, but also temporary, and therefore no modification of the support order was justified.

Overall, while one’s desire to better themselves and increase their earning potential for the benefit of their child is certainly commendable, based on Zavaglia, it does not appear that courts will permit parents to forsake their child support obligations, even on a short term basis, for this reason alone.

Courts Cracking Down on Bad Faith Negotiation of Non-Relocation Clause

By: Robert B. Kornitzer, Esq. and Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Physical custody of the children is often one of the most contentious issues that must be resolved during a divorce. The desire to be named the primary custodial parent is sometimes so great, unscrupulous litigants may negotiate the Marital Settlement Agreement (“MSA”) in bad faith and make false representations to the other parent in order to convince them to concede primary custody of the children. Along these same lines, a parent may only be willing to concede primary custody of the children under the condition that the other parent not relocate the children to a distant geographical location that makes regular visitation impracticable. Accordingly, a non-relocation clause will be included in the MSA.

Even if a non-relocation clause is included in the MSA, our courts realize that “life happens,” and the primary custodial parent may very well need to relocate with the children despite the agreement (i.e. they need to move to a different state for a new job). When an application to relocate by the primary custodian is made to the court, the court will generally permit the move to occur upon a showing by the primary custodial parent that: (1) there is a good faith reason for the move, and (2) the move will not be inimical to the child’s interest. Baures v. Lewis, 167 N.J. 116-17 (2001). However, if there is no good faith reason for the move, or if the non-relocation clause was not negotiated in good faith, the application must survive greater scrutiny, and the court must determine whether permitting the move would actually be in the child’s best interest (as opposed to simply not being inimical to the child’s interest). The former is a much easier showing for the primary custodial parent to make, and therefore there is a tremendous incentive to do whatever is necessary to be awarded primary custody of the children, and then just ask the court to permit the move later on, even if the parent secretly knew the relocation would be necessary and likely to occur all along during the negotiation of the MSA. This is exactly what happened in the recent unpublished case of Bisbing v. Bisbing.

In Bisbing, the Father agreed to let the Mother have primary custody of the children under the conditions that he have a great deal of regular visitation time with the children, and also that a non-relocation clause be included in the MSA – the Mother agreed to these conditions, and was granted primary custody of the children pursuant to the parties’ agreement. Just nine months after the Final Judgment of Divorce was issued, the Mother filed, and the court granted, a motion seeking to relocate the children to a far-away state so she could live with a man who would eventually become her new husband. Notwithstanding some very suspicious circumstances which would cause many to think the Mother planned on relocating all along, the trial court did not hold a plenary hearing[1] to determine whether the Mother negotiated the MSA in bad faith, and simply opted to apply the lenient analysis set forth in Baures.

On appeal, the Appellate Division reversed and remanded the matter for a plenary hearing, so a determination could be made as to whether the Mother had negotiated the MSA in bad faith, and set forth the analysis courts should use when an accusation of bad faith MSA negotiation is made. The Bisbing Court explained that the lower court must first determine whether the primary custodial parent negotiated the non-relocation clause of the MSA in bad faith. If so, a “best interests of the child” analysis must be conducted. Second, if bad faith is not demonstrated, the trial court must then consider whether the parent proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis. If the MSA was negotiated in good faith, yet the parent fails to satisfy her burden of proving a substantial unanticipated change in circumstances, the court must apply the same “best interests” analysis as required in the first step. Only if the noncustodial parent is unable to demonstrate that the custodial parent negotiated the MSA in bad faith, and the custodial parent is able to prove a substantial unanticipated change in circumstances occurred, should the custodial parent be accorded the benefit of the Baures analysis.

The Appellate Division’s holding is significant, as it provides valuable instruction on how trial courts should address colorable accusations of bad faith negotiations of MSAs, particularly non-relocation clauses. It is also demonstrative that this issue is now something our courts are on the lookout for, and will not tolerate. While it may be tempting to do so, divorce litigants should not attempt to game the system and trick their ex-spouse into giving up primary custody of their children based on bogus promises not to move out of the state.

[1] A plenary hearing is necessary when one party makes a motion and the court needs additional facts and information beyond what the parties have provided in their pleadings to make an informed decision.

Can I Pay Child Support Directly to My Child?

By Zachary Levy, Esq.
zlevy@pashmanstein.com

When children are involved in a divorce, determining an appropriate child support obligation for the non-custodial parent is a key function of Family Court judges. In cases where child support is necessary, the judge will typically order the non-custodial parent to pay a specific amount each month (or other predetermined amount of time) to the custodial parent to ensure that there are adequate funds available to meet the child’s needs. A recent opinion authored by the Honorable L.R. Jones, J.S.C., however, addressed an interesting alternative approach: if the child is over the age of eighteen, can the non-custodial parent can make child support payments directly to the child rather than to the custodial parent.[1]  It is called child support after all.

In the case of Kayahan v. Kayahan, the defendant/father (the non-custodial parent) requested that the court modify his child support obligation, and permit him to make payments directly to the parties’ daughter, who was over the age of eighteen and attending college at the time, instead of to the plaintiff/mother (the custodial parent). Although the father’s request to make payments directly to the child was ultimately denied in this case, Judge Jones noted that such a payment methodology could be permissible in certain circumstances, and identified three main factors that should be considered when determining if direct parent-to-child support payments should be permitted. The first factor is the child’s maturity and history of responsibility. Otherwise put, can the child be trusted to use the support money for its specific intended purpose? If the court feels that the child does not possess the requisite fiscal responsibility or would be too susceptible to the temptations typically associated with being eighteen years old and being away at college, direct payment to the child should not be permitted.

The second factor is the non-custodial parent’s history of paying timely child support. This factor is important because if the non-custodial parent fails make a support payment to the child, the child is far more likely to succumb to guilt or other pressures not to seek recourse for non-payment than the custodial parent would be. Finally, and perhaps most importantly, the court should consider whether there would be sufficient remaining child support funds for the custodial parent to continue reasonably maintaining the child’s primary home without significant economic hardship. In Kayahan, Judge Jones recognized that if the court were to permit a portion of the child support to be paid directly to the child, the remaining portion paid to the mother would not be enough for her to maintain the home and basic budget for the child’s benefit. This, of course, would not be in the best interest of the child, because even though the child was a college student, she was still dependent on her mother for support at this stage in her life.

At the end of the day, Family Court judges have broad discretion to fashion unique remedies based on the specific circumstances of the controversy before them. Although not the norm, direct parent-to-child support payments might be a worthwhile alternative option if appropriate based on the facts and circumstances of the case.

[1] Judge Jones’s opinion can be found here: http://www.judiciary.state.nj.us/decisions/kayahan%20%20opinion%20P.pdf

Recent Case Provides for Increased Child Support to Pay Motor Vehicle Insurance Premiums for Newly Licensed Teen Drivers

By Zachary Levy, Esq.
zlevy@pashmanstein.com

Every teenager dreams of the day they are able to get their driver’s license. On the other hand, parents may loath this day. While the cost of purchasing a new vehicle for a new driver can easily be avoided by simply sharing a car with their parents, the same is not true for motor vehicle insurance costs. In New Jersey, the State requires that all drivers carry a minimum level of insurance, and it is a crime to operate a motor vehicle without such insurance coverage. Insurance companies, wary of the new driver’s lack of experience behind the wheel, can charge tremendous premiums, sometimes approaching or exceeding $1,000 per year. Typically, parents subsidize or pay their children’s insurance costs, but the situation becomes a bit more unclear in instances when the child’s parents are divorced and a child support order is in play. More specifically, to what extent must the non-custodial parent, who is already paying guideline-level child support, contribute additional support to cover the cost of insurance for their child who is a newly licensed driver?

In Fichter v. Fichter,[1] the court was faced with a not unusual, but previously unaddressed situation involving this very issue. In that case, the plaintiff and defendant had two children at the time of divorce – one age seventeen and another age thirteen. The seventeen year-old already had his license, and support contributions were already being used to pay for his car insurance premiums. It seemed, however, that neither parent had contemplated that the thirteen year-old would also be getting her license in a few years, and there was no provision in the divorce settlement for this future expense. When the thirteen year-old turned seventeen and obtained her driver’s license; the custodial parent petitioned the court to increase the amount of support the non-custodial parent, who was already paying guide-line level support, needed to contribute in order to cover this new cost.

Interestingly, the State’s Child Support Guidelines (the “Guidelines”) expressly include “all costs involved with owning or leasing an automobile,” including costs related to “insurance,” among the expenses to be considered when crafting a support order. Based on this language, however, it is unclear if future motor vehicle insurance costs for a newly licensed driver would have been included in the award amount, or whether this is something that would warrant a support adjustment once the child obtains their license. Although a literal reading of the Guidelines would suggest that all motor vehicle insurance costs (current and future) would be accounted for in a Guideline support order, the Fichter Court rejected this interpretation, noting it would lead to the nonsensical result of the custodial parent receiving the exact same amount of support both before and after their teenage child obtains a driver’s license, irrespective of the sudden need to insure the driver and the related costs to do so. The court also noted that requiring an increase in support to pay for car insurance is in the best interest of the child, which is always the paramount consideration in child support determinations.

Alternatively, the court also explained that even if one were to interpret the Guidelines as already including future car insurance costs for a newly licensed driver in a support order, the Guidelines themselves also permit the court to deviate from the Guidelines in order to reach an equitable result based on the specific facts and circumstances of the case. Motor vehicle insurance costs are atypical from most other items on a family’s budget in that the law expressly requires it be had. Furthermore, the court touched upon important public safety concerns, noting that car insurance offers protection to members of the public at large who may be in the wrong place at the wrong time and fall victim to the new driver’s lack of experience behind the wheel.

Ultimately, the court required that the non-custodial parent’s support contribution be increased to cover fifty percent of motor vehicle insurance costs for the youngest child. Although foreseeable future expenses should always be considered when crafting a support order, Fichter provides important guidance on an issue that many divorced parents may encounter years later when their young children grow up and obtain their driver’s licenses.

[1] Opinion available at http://www.judiciary.state.nj.us/trial_court_opinions/Fichter-v-Fichter.pdf

Considerations When Imputing Income to Determine Support

Robert B. Kornitzer, Esq. and Caitlin Dettmer
rkornitzer@pashmanstein.com

Courts consider a variety of factors when determining what amount of alimony is appropriate.  Among these factors are the actual needs of the person requesting the support, the financial wherewithal of each party, and the earning capacities of each of the parties.  N.J.S.A. 2A:34-23(b).  This last factor may require the court to consider what income, if any, should be imputed (assigned) to a spouse who is either not working or underemployed.  This “imputation of income” is important in determining the extent to which the party requesting support can contribute to his/her own support, as well as the ability of the other party to pay support.  For a party seeking alimony, a higher imputed income to her/him may result in a lower alimony award, so this issue is the subject of much litigation.

An interesting illustration of one way the courts approach imputation of income in the unreported (non-binding) 2014Maine v. Maine. This case discusses an alimony request by a spouse who has some vocational training, but who was not employed in that field  during the marriage.  The wife in Maine sought support and explained that during the marriage, her husband had been the primary financial provider, earning $68,000 a year while she earned only $10,000 a year as a part-time custodian.  The husband argued that the wife should have a higher income “imputed” to her because she was capable of earning more money ($32,400 according to the N.J. Department of Labor (“DOL”)), having trained as a medical assistant during their marriage.

The court determined that while it would impute income to the wife, it would not do so without further inquiry and blindly use the average income of a medical assistant as reported by the DOL.  Instead, the court took into consideration the time it may take the wife to find work at the average income level of a medical assistant, due to her minimal work history in the field.  The wife was assigned an income of $23,000 which the court found she could earn immediately if she were to work forty hours a week at her current hourly rate.  The wife was also given four months to demonstrate that she had sought and was unable to obtain employment at a higher income level, before the court would reconsider her imputed income.

While the DOL’s averages provide helpful guidelines for determining what income should be imputed to someone who has training in a particular field, they are not necessarily representative of the income that a court will impute to a spouse who has a spotty work history in that field.  The Court will examine all specific circumstances surrounding the spouse for whom income is sought to be imputed and will not solely rely on a government statistic offered in a vacuum.

The Reality of “Changed Circumstances” and the New Alimony Reform Act

By Robert B. Kornitzer, Esq., and Caitlin Dettmer
rkornitzer@pashmanstein.com

When the spouse paying alimony seeks to reduce his support, the New Jersey Supreme Court requires the lower courts to consider (among others) two factors set out in Lepis v. Lepis, 83 N.J. 45, 157 (1980): (1) whether there is an initial of “changed circumstances” and (2) whether the supporting spouse has the ability to pay what he was previously paying.   Examples of changed circumstances include unemployment of the supporting spouse, changes in the supporting spouse’s income, illnesses, and changes in the dependent spouse’s living arrangements.  Courts will not modify alimony if the change in circumstances is only temporary.  Unfortunately, there is no perfect rule by which to measure when a changed circumstance is severe enough and has endured long enough to warrant a modification of support.

While there is no set amount of time that constitutes changed circumstances, recent changes to New Jersey’s alimony law (N.J.S.A. 2A:34-23) establish that an application for modification of alimony may be filed once a party has been “unemployed, or has not been able to return to or attain employment at prior income levels” for 90 days. The law maintains that factors other than the amount of time a party has been involuntarily unemployed or subject to a reduction of income are to be considered, but in theory, the law now recognizes that changed circumstances may exist after only three months of continued unemployment or inability to return to the level of income that existed at the alimony was set.  This three-month rule was considered to be a major reduction in the burden carried by the supporting spouse.

However, any celebrating by supporting spouses seeking to reduce support may have been somewhat premature.  In the recent unreported (meaning non-binding) case of Beschloss v. Beschloss, the court seemed to place more weight on factors other than length of time being unemployed when considering an application for downward modification of support.  In Beschloss, the Appellate Division upheld the denial of the defendant’s request for downward modification even though his income had been reduced by approximately one-third of his former income and despite a period of unemployment.

It therefore remains unclear as to how meaningful the impact of the revised alimony statute will be in determining future support modification applications.  We can look forward to many new cases continuing to define the issue of what constitutes “changed circumstances.

The Case of Rachel Canning and Parents’ Obligations to Pay Support and Tuition

It seems as if last week all the news outlets, local and national, were abuzz with the case of Rachel Canning, who filed a lawsuit against her parents here in New Jersey demanding support as well as private high school and college tuition payments – all despite the fact that she has for the last five months been living with another family. The case has all the right ingredients to make it a headliner: the attractive school-girl who is alleged on one hand to be an honors student and athlete, yet on the other an entitled party-girl brought home drunk mid-week by her boyfriend’s parents. There are her parents, who continue to profess their love for their daughter, and desire to see her home, but also admit their frustration at parenting a disobedient child who they feel engages in dangerous behavior. And there is also the weird involvement of a best friend and her local politician/lawyer father, who has candidly acknowledged his bank-rolling the litigation (but is asking for reimbursement).

Since gaining a national audience, the brashness of the suit has in some respects overshadowed the serious legal issues at play, as well as the sad reality that a family’s most private affairs have been forced into the open for critique and judgment. More than anything, it is a reminder that family law deals often with some of the most emotionally raw and culturally difficult issues. It also concerns rights often viewed as fundamental to our notions of “family.” At its core, the case pits the constitutional rights of parents to parent their child as they deem fit, without interference (and judgment) from outsiders, against the parens patriae role of the state to ensure a child’s well-being.

Moreover, mixed up in this, as a delimiting factor, is whether the child is emancipated such that she even has grounds to bring her case. (I have written previously about the standards involved in emancipating a child here). Thus, the parents and the child have vastly different views on how she came to leave the parents’ home. Rachel says that she was effectively thrown out of her parents’ house while mom and dad say she voluntarily left because she was unwilling to follow certain rules and help with chores. Her emancipation status is critical to whether the case proceeds to a hearing on what, if any, support and/or college costs the parent’s might be obligated to pay.

At the hearing this past March 5, 2014, the Court denied Rachel’s emergent application, urged the parties to try to work out a settlement, and yet scheduled a return date for April 22nd. Should the parties return without a mutually agreeable resolution, the Court will likely move to schedule a hearing on the issue of emancipation as a predicate question to the larger dispute of financial obligation.

The court acknowledged the difficulty of Rachel’s position, noting, “[d]o we want to establish a precedent where parents live in basic fear of establishing the rules of the house?” Moreover, the court suggested, “[allowing the emergent order] would represent essentially a new law or a new way of interpreting an existing law … A kid could move out and then sue for an Xbox, an iPhone or a 60-in television … We should be mindful of a potentially slippery slope.”

Further highlighting the implications of Rachel’s request, the parents’ attorney suggested  that allowing the application would embolden other children to say to their parents, “I am going to live with my [significant other] no matter what you say, but you’ll still have to pay for my college.”

The choice of college as the attorney’s example is prescient. As other commentators on this matter have noted, were the issue of college costs to come up in the context of a divorce between Rachel’s parents, the court would most certainly hold them liable for contribution toward that cost. But intact families enjoy a functionally higher level of privacy and autonomy than divorced families and the decision to fund college has historically been deemed a “family” decision. Thus, if married parents decide they won’t contribute to college, their decision is typically free from questioning by third-parties.

Finally, in a likely foreshadowing that this matter may end not in a bang but a whimper, recent news sources are now reporting that Rachel has reunited with her family and siblings, though the lawsuit itself remains pending.

UPDATE: The case against Rachel’s parents has been officially withdrawn.

Child Support Arrears and the Right of a Deceased Parent’s Estate to Collect

It is a well-known principle in family law that, generally, child support is a right belonging to the child. Thus, in the course of negotiating a settlement, it is acknowledged that one parent cannot waive a child’s right to receive support from the other in exchange for, say, the coffee table or sofa, or even increased share of financial accounts.

This well-worn concept was at the heart of the recent case of Roder v. Roder, 2013 N.J. Super. Unpub. LEXIS 3055. In the case, the child’s right to support was analyzed in the context of a deceased parent’s estate’s efforts to recoup unpaid child support. Following a convoluted and messy procedural history, the pertinent facts are as follows: the parties were married in 1987, wherein the husband adopted wife’s son from a previous relationship. The couple divorced in 1997 and wife remained parent of primary residence for the child following the divorce. The child was deemed emancipated in 2008. In January 2011, wife unexpectedly died. At the time of her death, husband owed child support arrears in excess of $40,000.00. Litigation ensued wherein wife’s estate sought to enforce the support obligation and to collect the outstanding debt. Husband objected to the estate’s claim, though not to the debt itself, and sought a court order to make his arrears payments directly to the child. For his part, the child sided with Husband and sought direct payment of the arrears, noting that though he continued to reside with his mother (wife) for approximately six months after graduation his graduation from college, she did not contribute to his college expenses, which he certified he had paid himself. 

The trial court denied the estate’s request and ordered that the support arrears be paid directly to the child.  On appeal, the appellate division reversed. It recognized the authority of the trial court to enforce its orders either for or against the estate of a decedent, but noted that in determining distribution it had gone beyond this authority. That issue, because of multiple beneficiaries to the estate (the child’s siblings), should be left to the Probate court, the appellate court stated.

Explaining this rationale, the court noted that, at the time of wife’s death, husband had no ongoing obligation of support to the child, as the child had been emancipated several years earlier. Further, commenting on the principle that child support is functionally a right belonging to the child, the appellate court distinguished that tenet and found that such a right had, “no relevance to payment of a child support debt owed to a custodial parent at the time of that parent’s death, especially where the child is emancipated and has no claim for ongoing support from either parent.” Id. at 13. The appellate division also found irrelevant the child’s claim that he had paid his own college expenses, noting that the arrears in question were for child support and not college costs. Id. Ultimately the appellate division held that the arrears amounted to a debt owed by husband to decedent-wife and that husband had no legal interest in how his support payments were to be distributed.

It is tempting to view this situation as deeply unfair to the child. On its face, it appears he loses out on collecting unpaid child support from his father, and which he did not receive the benefit of while un-emancipated. But, it is important to remember that child support represents a specific contribution toward the child’s use of certain fixed and variable expenses incurred by the custodial parent (heat, water, food, clothing, etc.), all of which wife incurred and effectively “covered” husband’s contribution toward, since he did not timely pay support and one assumes that wife kept her son sheltered, clothed, fed, etc.

The payment of support arrears in this matter are thus most akin to enforcing repayment of a loan, which wife theoretically “lent” to husband. The child received the benefit of being provided for by his mother and the arrears, such as they would reimburse wife for previously covering husband’s share, are a debt owed to wife, and now her estate.

Finally, it is worth noting that to the extent the estate is solvent, as an heir to his mother’s estate, the emancipated child will receive a portion of the arrears, albeit shared in part with any other qualified beneficiaries. As the subject child may receive some or all of these monies as a beneficiary after having already enjoyed what such monies were supposed to pay for (shelter, food, clothing, etc.), is it fair to suggest that it is the child who, upon receipt of any inheritance from his mother, will enjoy a double “payment” of the same support?