Child Support Arrears and the Right of a Deceased Parent’s Estate to Collect

By Tadd Yearing, Esq.
tyearing@pashmanstein.com

It is a well-known principle in family law that, generally, child support is a right belonging to the child. Thus, in the course of negotiating a settlement, it is acknowledged that one parent cannot waive a child’s right to receive support from the other in exchange for, say, the coffee table or sofa, or even increased share of financial accounts.

This well-worn concept was at the heart of the recent case of Roder v. Roder, 2013 N.J. Super. Unpub. LEXIS 3055. In the case, the child’s right to support was analyzed in the context of a deceased parent’s estate’s efforts to recoup unpaid child support. Following a convoluted and messy procedural history, the pertinent facts are as follows: the parties were married in 1987, wherein the husband adopted wife’s son from a previous relationship. The couple divorced in 1997 and wife remained parent of primary residence for the child following the divorce. The child was deemed emancipated in 2008. In January 2011, wife unexpectedly died. At the time of her death, husband owed child support arrears in excess of $40,000.00. Litigation ensued wherein wife’s estate sought to enforce the support obligation and to collect the outstanding debt. Husband objected to the estate’s claim, though not to the debt itself, and sought a court order to make his arrears payments directly to the child. For his part, the child sided with Husband and sought direct payment of the arrears, noting that though he continued to reside with his mother (wife) for approximately six months after graduation his graduation from college, she did not contribute to his college expenses, which he certified he had paid himself.

The trial court denied the estate’s request and ordered that the support arrears be paid directly to the child.  On appeal, the appellate division reversed. It recognized the authority of the trial court to enforce its orders either for or against the estate of a decedent, but noted that in determining distribution it had gone beyond this authority. That issue, because of multiple beneficiaries to the estate (the child’s siblings), should be left to the Probate court, the appellate court stated.

Explaining this rationale, the court noted that, at the time of wife’s death, husband had no ongoing obligation of support to the child, as the child had been emancipated several years earlier. Further, commenting on the principle that child support is functionally a right belonging to the child, the appellate court distinguished that tenet and found that such a right had, “no relevance to payment of a child support debt owed to a custodial parent at the time of that parent’s death, especially where the child is emancipated and has no claim for ongoing support from either parent.” Id. at 13. The appellate division also found irrelevant the child’s claim that he had paid his own college expenses, noting that the arrears in question were for child support and not college costs. Id. Ultimately the appellate division held that the arrears amounted to a debt owed by husband to decedent-wife and that husband had no legal interest in how his support payments were to be distributed.

It is tempting to view this situation as deeply unfair to the child. On its face, it appears he loses out on collecting unpaid child support from his father, and which he did not receive the benefit of while un-emancipated. But, it is important to remember that child support represents a specific contribution toward the child’s use of certain fixed and variable expenses incurred by the custodial parent (heat, water, food, clothing, etc.), all of which wife incurred and effectively “covered” husband’s contribution toward, since he did not timely pay support and one assumes that wife kept her son sheltered, clothed, fed, etc.

The payment of support arrears in this matter are thus most akin to enforcing repayment of a loan, which wife theoretically “lent” to husband. The child received the benefit of being provided for by his mother and the arrears, such as they would reimburse wife for previously covering husband’s share, are a debt owed to wife, and now her estate.

Finally, it is worth noting that to the extent the estate is solvent, as an heir to his mother’s estate, the emancipated child will receive a portion of the arrears, albeit shared in part with any other qualified beneficiaries. As the subject child may receive some or all of these monies as a beneficiary after having already enjoyed what such monies were supposed to pay for (shelter, food, clothing, etc.), is it fair to suggest that it is the child who, upon receipt of any inheritance from his mother, will enjoy a double “payment” of the same support?

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