Retroactive application of the five-year limit in §14-10-122(5)
The Court of Appeals announced their published decision today in In re Marriage of Weekes, 2020COA16. In that case, we argued for the father that the five-year provision in section 14-10-122(5) could not be applied retroactively to a case where the change of physical care occurred prior to enactment of the statute. We also argued that the court failed to adequately address the exception to the statute for situations where imposing the limitation provision would be "substantially inequitable, unjust, or inappropriate." § 14-10- 122(5).
The division disagreed with our first argument, finding that there was an intention by the legislature to apply the five-year bar retroactively because "the amendment to section 14-10-122(5) ties the limitation on child support modifications to the filing of the motion to modify, not the underlying change in physical care." The division went on to find that there was no vested right because the right to retroactively modify child support did not exist independently of the statute.
The division however, agreed with our second argument that father was entitled to a hearing on the question of whether the exception applies. In rejecting the exception, the lower court relied solely on the amount of time that had passed. The division held that the court erred by not considering various arguments that could have supported the exception. The court noted that these factual issues were "hotly contested" and that a hearing was required. The court also ruled that requesting a hearing in a reply is sufficient.