Child Support Modifications and Retroactivity of Arrearages

On July 6, 2022, the #NH #SupremeCourt issued its ruling in In the Matter of Borelli and Borelli. While the Court essentially reinforced preexisting law regarding #childsupport modifications, this is an important case for all #NHFamilyLaw practitioners to read.

In this case, the Petitioner, who was the obligor for child support purposes, filed a petition to modify his child support obligation based on an agreed upon change in parenting schedules with the obligee. It was at this point that everything began to go very poorly for the Petitioner.

The original child support order for the parties' four child required that the Petitioner pay $2400 a month in support. There was no provision setting forth the reduced amounts as each child aged out. As each child aged out however, the Petitioner reduced his child support payment by a quarter. Whether the obligee agreed to this or did not agree but also did not seek court intervention is unknown and immaterial to the analysis here.

At the time the Petitioner filed his petition to modify child support, he was only paying $1200 a month in support - half of what the court's child support order set forth. And this is where it gets really bad for the Petitioner...

Addressing the Petitioner's request to modify, the trial court concluded that he owed arrearage of $50,420! The trial court reasoned that the originally amount of $2400 a month was owed until the date the petition to modify was served on the obligee.

While the older children had aged out, it was incumbent on one of the parties to seek a modification. Simply agreeing to modify a court order and acting as if the modification has taken effect is not the equivalent of modifying the order! The Court, quoting from its prior holding in In the Matter of White and White, noted that "when an order establishes a support obligation for more than one child, but does not specify the amount of a new child support obligation for the remaining unemancipated children . . ., a parent must apply to the court for modification of such order."

For those in the back: IF YOU WANT TO MODIFY A CHILD SUPPORT ORDER, YOU MUST PETITION THE COURT.

The Petitioner argued for a retroactive adjustment of arrears, however, pursuant to the statute as interpreted by the Court in White and White, the courts do not have the power to retroactively alter arrears. So, instead of a simple modification, the obligor walked away from the case with $50,420 in arrearages (not to mention his lawyer's bill).

PRACTICE TIPS:

1. Consider putting in your #UniformSupportOrder a provision that states "upon child X turning 18 or graduating high school, whichever occurs later, the child support obligation shall be automatically modified to whatever the current #ChildSupportGuidelines dictate."

Why might you not want to put in this language? If the obligor's income has significantly increased over time, the original support amount may modified upward. It may be better to leave this language out of the #USO and instead file a petition to modify.

2. Absent a provision which triggers an automatic adjustment of child support, remind you client in your closing letter to call you 60-90 days prior to a child aging out of child support to determine whether it makes sense to file a petition to modify.

3. Put in your outlook calendar or case management system a reminder to contact the client 6 months prior to a child aging out of child support to remind them of the need to assess whether modifying child support makes sense for them.

4. Before filing a petition to modify, make sure that your client is not going to be found to be in arrears, like Mr. Borelli was. Failing to advise your client of this risk could result in your client paying you fees to incur a substantial arrearage bill! (of course, this should only be a risk if your client is not paying support through the Bureau of Child Support Services).

https://www.courts.nh.gov/sites/g/files/ehbemt471/files/documents/2022-07/2022042borelli.pdf