Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If My N.J. Child Support Is Lowered, Do I Receive a Credit?

Yes, in New Jersey you may receive a credit for over payment of child support but only from the date that your lawyer filed the application with the Family Part of the Superior Court of New Jersey.  In Schmidt v. Breda, father Paul Breda appealed an order of the Superior Court of New Jersey, Family Part of Morris County, dated January 9, 2015, that denied his motion for reimbursement of overpaid child support. As the child attorneys at our law firm embrace, motions filed in a New Jersey Family Court for reimbursement, timing is of the utmost importance. One of the reasons why Paul’s motion failed is because he waited too long to file for reconsideration or an appeal, even though the amount was based on an error. Instead, he paid the amount awarded in the order, and did not seek any form of relief until almost sixteen months after the July 8, 2013 order was issued. New Jersey Statute 2A:17-56.23a prohibits the retroactive modification of child support, expect for the duration of time that the motion for modification is still pending before the court. Therefore, the New Jersey Appellate Division affirmed the Family Part’s denial of Paul’s motion for reimbursement. 

Paul Breda and Diane Schmidt shared joint legal custody of their three children. The mother, Diane, was the designated parent of primary residence, while Paul served as the parent of alternative residence. The first order establishing the child support obligation was issued on October 3, 1997. The order required Paul to pay Diane $ 112.08 a week in child support. This amount was determined by the New Jersey Child Support Guidelines

The child support obligation was increased on November 5, 2004, with a Family Part court order that stated, that starting July 1, 2004, Paul’s child support obligation would be $ 275 every week. Again the order stated that the child support obligation was determined by the Child Support Guidelines. It was predicated on an imputed income of $ 30,000 a year for Diane, and a $ 75,000 a year for Paul. 

The Family Part increased Paul’s child support obligation once more on August 30, 2007, by entering an order stating that commencing February 1, 2007, Paul’s would be obligated to pay Diane $ 352 a week in child support. This amount was once again calculated using the Child Support Guidelines, with $ 30,000 in income imputed on to Diana, and Paul’s income set at $ 126,000. The same order also stated that on August 26, 2007, Paul’s child support obligation would be adjusted to account for the eldest child leaving for college. At that time, his child support obligation would decrease to $ 320 a week, to support the two children remaining in the household.

Paul filed a motion for a downward modification of his child support obligation on July 2009. As a result, the Family Part of Morris County entered an order that reduced his support payments to $ 200 a week. The order noted that while the parents considered a child support obligation based on the New Jersey Guidelines, they instead agreed that $ 200 a week would be more appropriate. 

Diane moved to Canada on June 14, 2010, and as a result, Paul was designated as the parent of primary residence for the two children still living at home. A consent order was entered on July 1, 2010 which stated that Paul’s child support obligation would end on July 1, 2010, or the first full week the two child started living with him. The consent order further provided that instead of child support, Diane would pay Paul $ 200 a month that would be directly deposited into his account. Additionally, the consent order provided that Paul keep on paying the eldest daughter $ 6,000 a year for her college expenses. 

Eventually, Diane moved back from Canada and once again became the parent of primary residence. The judge directed her attorney to calculate child support based on the Guidelines, and to give the results to Paul and his attorney to try and reach a settlement. The order also stated that child support should be based on the fact that Paul would have the kids for three overnights a week, and that at least $ 30,000 in income should be imputed onto Diane. Her attorney based the calculation on Paul’s reported income of $100,000, and came up with $ 182 a week for the one remaining child. Paul however did his own calculation of child support based on an annual income of $ 91,635 as indicated on his W-2. According to his calculations the child support obligation should have been set at $ 70 a week. 

On June 17, 2013, Diane’s attorney responded by challenging the use of the Child Support Guidelines, because they had “not been used throughout.” She argued that the parents had not used the Guidelines in their last agreement, and calculated Paul’s child support obligation at $ 99 a week. On July 8, 2013, the Family Part of Morris County entered an order requiring Paul to pay $ 99 a week in child support..

Paul wrote to his ex-wife in September 2014 noting that the child had been away at college since August 2014, and that he had been unemployed since August 22, 2014. He re-calculated his support obligation and reduced his income to an imputed amount of $ 50,000 a year. He further stated that he was willing to pay $ 15 a week in child support based on his own calculation. He then filed a motion in November 2014 and sought a termination of his child support obligation. He also claimed that he had been paying $ 47 more a week than the amount he should have been since March 7, 2013. Paul requested the court for an order that compelled Diane to reimburse him for the amount he allegedly overpaid. On January 9, 2015, Judge Peter Bogaard determined that the child support order from 2013 was wrong because it was based on a Section 17 increase that should not have been applied because Diane’s attorney stated that this was the first time that child support had been calculated using the Child Support Guidelines in this case, which was simply not true. Regardless, the judge still denied Paul’s request for reimbursement. Judge Bogaard stated that because of the previous clerical error in determining child support, Paul’s child support obligation was $ 40 a week. Paul then filed this appeal. 

Paul argued that Judge Bogaard abused his discretion by failing to order Diane to reimburse him for his child support overpayments. The New Jersey Appellate Division found that Paul’s argument lacked merit, and affirmed Judge Bogaard’s decision. The appellate panel explained a Family Part court has broad discretion in ordering a child support award. A judge’s child support award cannot be disturbed or set aside unless it is clearly unreasonable, lacks support from substantial evidence or is “the result of whim or caprice.” In this case, the Family Part judge found that the July 8, 2013 order that set the amount of child support at $ 99 a week was erroneous because it inappropriately included a Section 17 increase of support. Still, Paul did not file a timely appeal or seek reconsideration when he should have. Instead, he paid the amount ordered in the order, and did not seek any form of relief until November 2014, almost sixteen months after the July 8, 2013 order was issued. The New Jersey Appellate Division stated that the Family Part judge was correct in finding that because the child support had been paid to Diane for the child’s benefit, it was safe to assume that the money was used for the child. Under that circumstance it would not be fair to grant Paul the reimbursement because it would effectively take away any future support for that child. Judge Bogaard correctly noted that child support payments belong to the child, not the parent they are paid to. The parent only receives the payments on behalf of the child, for the benefit of that child. Furthermore, New Jersey Statute 2A:17-56.23a prohibits the retroactive modification of child support, expect for the duration of time that the motion for modification is still pending before the court. Therefore, the New Jersey Appellate Division affirmed the Family Part’s denial of Paul’s motion for reimbursement.