Mother Didn’t Pay Child Support to Father, So Equity Dictates She Can’t Receive Money In Return

Feb 02, 2016

In McDonough v. Rosario, a couple divorced in 2005 after a 13 year marriage.  They had two children, both of whom lived with the mother at the time.  When the mother remarried, the youngest child moved in with the father in 2011 and the father obtained an Order awarding him custody of the youngest child. 

In 2014, the father filed an application for child support for the youngest child and one-half of her college expenses.  The trial judge ordered the mother to pay $210 per week in child support effective February 2014.  The trial judge also found that the mother was entitled to unreimbursed medical expenses from the father, but that she needed to provide documents supporting the expenses.  The support documents evidenced that the mother was owed $13,722.88 for those unreimbursed medical expenses.  The father refused to pay and the mother filed an application to enforce the trial judge’s previous Order.

In November 2014, the trial judge denied the mother’s application to enforce the previous Order since the mother had not paid any child support between 2011 and 2014  In effect, the trial judge implemented an equitable resolution offsetting what the mother and the father may have owed to the other. 

In Ohlhoff v. Ohlhoff, the Court held that there should be no elimination of child support payments that accrue during a period when a child is residing with a supporting parent without an order awarding custody. However, in McDonough v. Rosario, the father had obtained an Order of custody in 2011 but not an Order of child support. Thus, the issue was whether the trial judge could equitably consider the three years that the father did not receive child support from the mother in denying the mother’s application for unreimbursed medical expenses from the father. 

“The Family Part is a court of equity.”  The trial judge’s implementation of an equitable resolution was affirmed by the Appellate Division.

If you have an issue with child support, contact the skilled attorneys at Sarno da Costa D’Aniello Maceri LLC.  Call us today at (973) 274-5200.