Under New Jersey law, a party of a divorce can seek modification of an order for child support or alimony if there is a “change of circumstance” that affects the income or earning ability of one of the parties. Lepis v. Lepis, 83 N.J. 139 (1980). This proposition is one of the most common reasons for post-judgment motions in New Jersey Family law courts, especially in the current economy. But in a recent unpublished New Jersey Appellate Division decision, Good v. Nedza, the Court affirmed a post-trial order, which did not permit a recalculation of child support or arrears because one of the parties failed to act on information they had obtained years earlier and had at the time when the parties entered a Consent Order for child support.
In Good, the parties were divorced in 2002. At the time, Mr. Good was the primary provider and the wife, Ms. Nedza, was a homemaker. The parties had three children. They agreed that Mr. Good would pay child support and alimony, and they would share joint legal custody of the children with Ms. Nedza having primary residential custody. Over the years circumstances changed. By September 2005, all of the children were residing with Mr. Good and his child support obligation was terminated. A Consent Order entered in January 2006 addressed Ms. Nedza’s child support obligation to Mr. Good.
In April 2008, Mr. Good filed an application with the court to increase child support payments based on an imputed income to Ms. Nedza of $85,000/year plus $25,000 in subsidized lifestyle (free apartment, Jaguar, vacations, etc.). Mr. Good sought the payments to be retroactive to January 2006 because Ms. Nedza’s income was “erroneously” fixed at $25,000/year as a direct result of her misrepresentations in 2006. Mr. Good also sought child support arrears retroactive to July 2004 based on Ms. Nedza’s misrepresentations.
The judge found that Mr. Good’s motion was untimely under Rule 4:50-1, which allows orders to be vacated or modified if there is mistake, fraud, or newly discovered evidence. But the motion must be filed within 1 year of the entry of the order pursuant to Court Rules. In this case, the judge found not only that it was more than one year, but more importantly, that Mr. Good was aware of the alleged misrepresentations in 2006, prior to entering into the January 2006 Consent Order. Because Mr. Good was aware of the alleged misrepresentations in 2006, had taken discovery, had the opportunity for a plenary hearing, and then still entered into a Consent Order, he could not attempt to re-litigate an old issue. The judge did order a recalculation of child support obligations as of January 2008 because there was a “change of circumstance” in the parties’ income since January 2006, but would not assess arrears.
This case is a great example of what can occur if a party: (1) does not seek to enforce their rights in a timely manner; and (2) enters into a Consent Order prematurely. It can be vital to act quickly when new information becomes available and not to settle on incomplete discovery. Without knowing, future rights can be impacted. This is not to say that where there is fraud or misrepresentation courts will not overturn or vacate prior decisions or Orders. In those cases the burden of proof rests on the party making the allegations. While many litigants are anxious to settle matters quickly or as cost efficiently as possible, sometimes rushing to do so can negatively affect your rights under the law. Just as with most other things in life, having all the information is necessary to making an informed decision.