Does Child Support Automatically End Upon Death Of The Child?
No, an application to terminate child support must be made to the Superior Court of New Jersey. However, pursuant to New Jersey law, a lawyer may obtain a retroactive credit for any child support payments made post-mortem. As New Jersey family law attorneys, we handle many motions to modify or end child support for a variety of reasons. Needless to say, the death of child is a devastating tragedy that affects far too many families. So while a child’s death ends a supporting parent’s obligation to pay child support, as a matter of public policy, a New Jersey Family Court may make any child support paid after the catastrophe of the death is retroactive. As a veteran lawyer, I embrace that if retroactive modification to the death of child’s death were prohibited, these motions would be have to be filed immediately upon the death of the child. No honest attorney or judge here in New Jersey wants a court battle while everyone in the family is still in shock and grieving this heartbreaking loss. As a result, a prohibition on retroactive modifications on child support would actually encourage supporting parents to file inappropriately timed motions while the families are still dealing with a horrific and traumatic tragedy.
The tragic 2008 Family Part of Monmouth County case of Centanni v. Centanni, addressed the issue of if child support can be retroactively modified to the date of a child’s death. This case of first impression was decided by the Honorable Judge McGann. After one of his children died in a car accident, Floyd Centanni filed a motion to modify and reduce the child support he paid to his ex-wife, Andrea Centanni. He argued that the child support should be modified retroactive to the date the child died. The mother, on the other hand, argued that the child support obligation should only be modified to the date that Floyd filed his motion to modify child support. The Honorable Judge McGann of the Family Part of Monmouth County held that the duty to pay child support for the child ended upon the death of that child, and there was no language stated within New Jersey Statute 2A:17-56.23a that showed that the New Jersey Legislature intended to prohibit retroactive modification for such a circumstance. Therefore, the Family Part modified Floyd’s child support obligation to $ 100 a week to provide for the surviving child, retroactive to date of the deceased child’s death on October 6, 2007.
Floyd and Andrea Centanni got married on September 1, 1984. The couple had two children together: Dana who was born on November 5, 1990, and Danielle who was born on January 17, 1989. On June 10, 2004, Andrea and Floyd got divorced, and entered into a property settlement agreement.
In a cruel twist of fate, on October 6, 2007, Dana was killed in a car accident. Floyd filed a motion on January 10, 2008 to reduce his child support obligation. Andrea filed a cross-motion, and oral argument was held on March 28, 2008. Floyd contended that the modification of child support should go back retroactively to the date that Dana died. Andrea opposed this contention, and argued that the modification should only go back to the date Floyd filed his motion for modification.
Judge McGann explained that any conversation about whether child support may be modified retroactively, has to first start with an analysis of New Jersey Statute 2A:17-56.23a. This law states, in part, that no child support payment ordered before the effective date of this law can be modified retroactively by a Family Part court, except for the time during which a motion of modification is pending, and even then only from the date that the notice of motion was mailed. The judge explained that there is no question that the required written notice of motion was mailed. The only issue was whether the child support obligation should be modified to the filing date of the motion, as Andrea contended, or if it should be modified retroactively to the date of Dana’s death, as Floyd argued.
More than twenty years have passed since New Jersey Statute 2A:17-56.23a was passed, and in that time courts have said that there are certain scenarios where a court’s departure from the strict narrow interpretation of New Jersey Statute 2A:17-56.23a may be warranted. In the 1999 New Jersey Appellate Division case of Keegan v. Keegan, an appellate panel reviewed an order of the Family Part that increased child support retroactively. After analyzing the legislative history of N.J.S.A 2A:17-56.23a, the appellate panel stated that the purpose of this state is to fix the loopholes associated with interstate child support enforcement laws, in an effort to benefit children.
Furthermore, in the 1995 New Jersey Appellate Division case of Mallamo v. Mallamo, the appellate panel found that when the trial court reduced a child support obligation from $ 175 to $ 100, made effective to the first day of trial, it did not constitute a prohibited retroactive modification under N.J.S.A. 2A:17-56.23a.
The case most analogous to the issue in Centanni, was the 1995 New Jersey Appellate Division case of Mahoney v. Pennell, which held that the purpose of N.J.S.A. 2A:17-56.23a was to make sure that support payments were paid when they became due. Therefore, a change of circumstance like a loss of employment cannot be used to retroactively modify accrued child support arrearages. However, this is premised on the fact that a duty to pay child support exists. If there is no longer a duty to pay support, then child support logically cannot be due. The issue in that case was emancipation, and the New Jersey Appellate Division held that child support actually can be terminated retroactively to the date the child became emancipated, because that is the date that child support no longer became due.
Judge McGann found that the same reasoning should apply in Centanni. When Dana tragically died, Floyd’s obligation to pay child support for her ended. There is no language in the entirety of New Jersey Statute 2A:17-56.23a that implies the New Jersey Legislature intended to prohibit Family Part courts from retroactively modifying child support upon a death of a child. Judge McGann explained that there were other equitable issues in this case to consider as well. If retroactive modification to the death of child’s death was barred, it would essentially be a financial punishment to the parent paying child support who had, in good faith, thoughtfully allowed a reasonable period of grieving and healing to pass before filing a motion in court to modify child support. As a result, a prohibition on retroactive modifications on child support would actually encourage supporting parents to file inappropriately timed motions while the families are still dealing with a horrific and traumatic tragedy. Therefore, the Superior Court of New Jersey, Family Part of Monmouth County found that New Jersey Statute 2A:17-56.23a did not prohibit the retroactive modification of child support to the date of a child’s death. Judge McGann reviewed the financial documents provided by the parents, and set Floyd’s child support obligation for the remaining child, Danielle, at $ 100 a week, retroactive to the day of the child’s death, on October 6, 2007.
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