Mallamo v. Mallamo: Where Do We Stand 20 Years Later?

June 20, 2016Articles New Jersey Family Lawyer

In the late 1960s, there was a television show called “To Tell the Truth” with Garry Moore and Derwood Kirby. Panelists were asked to guess the occupation of one of the three contestants and choose which one of the three was telling the truth.

As a judge, one is tasked to engage in a game of “To Tell the Truth” when assessing the facts of a case and arguments made by the parties to reach a decision. A judge believes it is the right decision at the time. When additional facts become known, those facts may become the basis to alter a previous decision. Such was the case 20 years ago, when I was the trial judge in Mallamo v. Mallamo,1 where I held a full trial, reduced—during the trial—the child support award previously made, and confirmed that reduction in my final decision. I determined that my initial choice was not the correct choice. In addition, that modification was made retroactive to the date of the initial child support award. An appeal ensued and the final judgment was affirmed in all respects. Justice (then Judge) Mary Catherine Cuff, who now sits on the Supreme Court of New Jersey, wrote the opinion for the court and was very kind in her references to the trial judge. This was not always the case when the appellate court reviewed my work below, so the ‘mitzvah’ from Justice Cuff was appreciated.

The purpose of this article is to explore the application of claims for retroactive modifications. First, the Mallamo decision centered around child support arrears, and the wife’s attorney argued that my decision violated the statutory prohibition of retroactive modification of child support. The appellate court recognized the pendente lite orders are deemed to be temporary and are entered without testimony. The trial was not a modification proceeding, and changed circumstances were not required to be shown. The entry of the final order replaced the prior entry of the temporary order.

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