Child support arrears due a divorcée at the time of her death belonged to her estate, not to her emancipated son, a New Jersey appeals court says.
The child’s mother was the obligee and the debt transferred to her estate when she died, the Appellate Division held in Roder v. Roder on Dec. 31.
“While our courts have stated that child support belongs to the child, that assertion is generally found in discussions of the general principle that one parent cannot waive a child’s right to receive support from the other,” the judges observed.
According to the opinion, Donald Roder and Linda Roder were married in 1987 and Donald adopted Linda’s son, Matthew Merkel. The couple divorced in 1997 and as part of the divorce settlement, Roder agreed to pay $150 a week in child support for Merkel. He lived with his mother, who later remarried.
Roder fell into arrears and by the time Merkel graduated from college in 2009, Roder owed $40,648 in back child support. He agreed to pay $30 a week but had paid only $90 of the amount due by the time his ex-wife died.
In the Family Part litigation that followed, the decedent’s administrator demanded the money be paid to her estate. Roder, with Merkel later joining in, asked that it be paid to Merkel.
The trial judge agreed with Roder, noting it was in the best interest of Merkel, by then 27, to have payments made to him, especially since he had incurred expenses attending college.
The appeals panel said the trial judge’s findings were “inconsistent with and not supported by the record and [was] skewed by a misapprehension of the law.”
Roder’s arrears were for child support, not college expenses, “which are two different things,” Judges Clarkson Fisher Jr. and Jane Grall wrote. “Roder had no obligation to pay any support to his emancipated son Matthew.
“In short, there was nothing before the Family Part that suggested that these child support arrears were anything other than a debt Roder owed to [his ex-wife] for supporting their child at the time of her death,” the judges said.
Roder’s attorney, Daniel Brown, of Woodbridge’s Paone, Zaleski, Brown & Murray, was away from his office and could not be reached. Merkel was represented by an unnamed attorney from Holmdel’s Schwartz & Schwartz, which was closed on Friday.
The estate’s attorney, Neil Malvone of Milltown, was disbarred in October for unrelated reasons and could not be reached for comment.■