NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4172-18
SUZETTE COLON,
Plaintiff-Respondent,
v.
DANNY COLON,
Defendant-Appellant.
_______________________
Submitted November 9, 2021- Decided June 24, 2022
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FM-16-1598-07.
Ziegler, Zemsky & Resnick, attorneys for appellant
(Steven M. Resnick, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant Danny Colon appeals from a March 29, 2019 order which
denied his motion to terminate his child support obligations and suspend
collection of arrears. The order also compelled payment of arrears in the amount
of $1,500 per month. Defendant asserts the trial court erred in its application of
N.J.S.A. 2A:17-56.23a in only terminating child support as of the day he filed
his motion and contends the effective date of the termination of child support
should be June 1, 2018. Defendant also argues for the first time that the judge
erred by ordering that defendant pay $1,500 per month towards remaining
arrears because his inability to work prevented him from making further
payments. We reject defendant's claims and affirm.
The parties married in 2001, had one child, Danny, Jr., and divorced in
2008. On October 27, 2008, the final judgment of divorce incorporated a
Property Settlement Agreement (PSA) under which defendant was obligated to
pay plaintiff child support in the amount of $4,000 per month for the initial three
years following the divorce and $3,000 per month until the child reached the age
of eighteen.
On January 29, 2019, defendant moved to terminate his child support
obligation under the PSA, and vacate child support arrears retroactive to June 1,
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2018, the date of his amyotrophic lateral sclerosis (ALS) diagnosis. He
contended that he had lost his housing, had no source of income, and was unable
to work because he suffered from ALS. He stated that he unilaterally ceased
paying child support when he discovered that he paid an additional two years
beyond the term required by the PSA. He also stated that he voluntarily paid his
child's expenses for the first two years of college. Consequently, he argued that
the Passaic County Probation Department erroneously garnished his earnings
from June 1, 2018 to the date of filing of the motion. During that time,
defendant's child support arrears accrued to approximately $33,000.
At the motion hearing, the judge queried both attorneys closely regarding
the parties' submissions, including defendant's Case Information Statement, his
incomplete bankruptcy petition, and a one paragraph letter from defendant's
neurologist. The judge entered an order partially granting and partially denying
the requested relief.
Initially, the judge found defendant was not entitled to vacation of arrears
accrued prior to the January 29, 2019 filing date of his motion. He found that
1
ALS is a degenerative neuromuscular condition that causes the progressive
degeneration of motor neurons in the brain and spinal cord. As the motor
neurons deteriorate, voluntary muscle action is progressively affected, including
the ability to speak, eat, move, and breathe. What Is ALS, ALS Ass'n,
https://www.als.org/understanding-als/what-is-als (last visited June 10, 2020).
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defendant provided "no explanation for the delay in seeking termination of his
child support obligation following his ALS [diagnosis]," therefore he found
N.J.S.A. 2A:17-56.23a barred the retroactive vacating of arrears.
The judge noted that any subsequent payments made by defendant after
the child's eighteenth birthday were considered gift payments and therefore
excluded in the child support calculus. After reviewing the conflicting and
contradictory financials submitted by defendant, the judge then reduced
defendant's child support arrears payment to $1,500 per month.
Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). We "accord particular deference to the Family Part because of
its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 413).
Generally, "findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-12 (citing
Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). As
such, we will defer to the Family Part's factual findings and legal conclusions
unless convinced they are "manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Ricci v. Ricci, 448 N.J. Super. 546, 564 (App. Div. 2017) (quoting
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Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015)). Challenges to
legal conclusions, as well as a trial court's interpretation of the law, are subject
to de novo review. Amzler v. Amzler, 463 N.J. Super. 187, 197 (App. Div.
2020).
Defendant argues the judge erred by finding N.J.S.A. 2A:17-56.23a barred
the vacation of arrears prior to his filing date. N.J.S.A. 2A:17-56.23a prohibits
retroactive modification of child support and child support arrearages. Keegan
v. Keegan, 326 N.J. Super. 289, 293 (App. Div. 1999). The statute states:
No payment or installment of an order for child support,
or those portions of an order which are allocated for
child support established prior to or subsequent to the
effective date of [N.J.S.A. 2A:17-56.23a], shall be
retroactively modified by the court except with respect
to the period during which there is a pending
application for modification, but only from the date the
notice of motion was mailed either directly or through
the appropriate agent. The written notice will state that
a change of circumstances has occurred and a motion
for modification of the order will be filed within 45
days. In the event a motion is not filed within the 45-
day period, modification shall be permitted only from
the date the motion is filed with the court.
[N.J.S.A. 2A:17-56.23a.]
Pursuant to the statute, a court may retroactively modify one's child
support obligation under an existing court order back to the filing date of an
"application for modification," or forty-five days earlier upon service of advance
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notice. See Cameron v. Cameron, 440 N.J. Super. 158, 166 (Ch. Div. 2014).
The statute "was enacted to [ensure] that ongoing support obligations that
became due were paid." Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App.
Div. 1995). Thus, for example, "[a] change of circumstances, such as loss of a
job, could . . . not be used as a basis to modify retroactively arrearages which
already accrued under a child support order." Ibid.
Settled precedent establishes that a vacation or retroactive modification of
child support arrears prior to filing the motion is generally prohibited even if the
paying party suffers the loss of a job or lacks a stream of income. See id. at 642.
We reject defendant's argument that Mahoney required the trial judge to grant
vacation of the support arrears retroactive to June 1, 2018. Mahoney holds that
once a child's emancipation occurs, the underlying support obligation no longer
exists, and N.J.S.A. 2A:17-56.23a's limits on retroactive arrears vacation do not
apply. That happened here. However, the judge found that defendant
voluntarily continued support payments for at least two years after
emancipation. With these "gift" support payments established, the judge next
found defendant failed to explain his delay in filing the motion to vacate arrears
more than six months after his ALS diagnosis. We discern no abuse of discretion
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by the Family Part judge in confining vacation of defendant's arrears to the date
of his motion filing.
We turn to defendant's next argument, that the trial judge erred in ordering
defendant to pay $1,500 per month toward his child support arrears. We have
no obligation to address this argument on appeal where it was not raised before
the trial court. Zaman v. Felton, 219 N.J. 199, 226-27 (2014). Nevertheless, we
are satisfied there was sufficient support in the record, including defendant's
financial records, for the judge to render his determination.
Affirmed.
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