Friday, October 31, 2014
Reimbursement of Child Support and Legal Fees Awarded post-Judgment
The recent Appellate Division case, Dickson v. Hansson, is a post-judgment dissolution case in which the Plaintiff, Abra Dickson, appealed from a 2013 Family Court order awarding her ex-husband, the Defendant Peter Hansson, counsel fees totaling $3,200 stemming from his successful Motion to enforce an earlier court order involving his over payment of child support. On appeal, the Plaintiff asserts that the counsel fees were not warranted because she did not "act in bad faith," and the court failed to properly apply Rule 5:3-5(c). The Appellate Court affirmed the decision of the lower court. in 2012, the Family Court ordered a modification of the Defendant's child support obligation to recognize the parties' daughter's college expenses. In the order, the court terminated the Defendant's child support obligation affective August 2012, based upon provisions in the parties' Property Settlement Agreement (PSA) regarding the Defendant's obligation to pay 100% of his daughter's college expenses. After the order was issued, the Defendant's attorney asked the Plaintiff for a refund of a few months of child support payments that the Defendant made prior to the issuance of the court order in the amount of $2,826. The Plaintiff responded by stating that the money was gone because she gave it to their daughter who spent it on expenses. In 2013, the Defendant filed a Motion to enforce the prior court order to get back the money that he over paid in child support and requested counsel fees. The Family Court judge ordered that the Plaintiff refund the Defendant $2,826 in child support that he paid and awarded the Defendant $3,200 in counsel fees. The Plaintiff appealed. The Appellate Division affirmed the decision of the lower court and held that "an allowance of counsel fees and costs in a family action id discretionary" but requires the court to consider the factors set forth in Rule 5:3-5(c). Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The Appellate Division did not receive any information provided to the trial court when it calculated the attorney's fee award from the Plaintiff and therefore the court was in no position to overturn that portion of the Family Court's ruling. Further, the court found no abuse of discretion in the Family Court's ruling. It found that the Plaintiff intentionally failed to comply with the court's order directing repayment to the Defendant, and taking the unreasonable position that the child support should be reimbursed by her daughter and not the Plaintiff herself. The court determined that the Plaintiff's decision to give the child support money to her daughter did not relieve her of the obligation to refund the overpayment. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, divorce, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.