Relates to recoupment of overpayments of child support in family and supreme court

Neither the Family Court Act nor the Domestic Relations Law addresses a question frequently presented in both Family and Supreme Court proceedings, i.e., whether a support obligor who has overpaid on a child support order may recoup all or part of the overpayment. New York's statutory framework is silent as to whether recoupment should be available at all and, if so, what court, if any, may entertain an application therefor, what the standard should be, whether recoupment should be credited toward future support or arrearages and over what period of time payments should be made or credited. Since the equities favor court intervention to provide redress to a party who has overpaid in cases where the recipient of the overpayment has been unjustly enriched, we propose this measure to fill this substantive and procedural void.

First, this measure provides the court that issued or modified the child support order for which an overpayment is alleged with continuing jurisdiction over an application for recoupment. This would clarify that such an application may not be made in a small claims or other local court, but must be made in the court that issued or modified the child support order in question. In the case of an order issued by a Supreme Court without a reservation of exclusive jurisdiction, Family Court also could adjudicate a recoupment application. The measure also precludes an application for recoupment of payments made to cover a period prior to the existence of a child support order, which had been the ground for denial of recoupment in the Appellate Division, Second Department, case of Foxx v. Foxx, 114 A.D.2d 605 (3d Dept., 1985).

Second, the measure provides a standard for determining whether recoupment of all or part of an alleged overpayment is appropriate, i.e., "where the interests of justice require," as well as specification of the proof required. The applicant must provide proof of the overpayment, as well as proof "that the amount of the recoupment and the method and rate of its collection will not substantially impair the custodial parent's ability to meet the financial needs of the child or children." Finally, the court must state its reasons on the record for any order granting or denying recoupment.

While some appellate courts have permitted recoupment of support overpayments in certain circumstances, it has frequently been denied for long-standing public policy reasons. See, e.g., Mairs v. Mairs, 61 A.D.3d 1204 (3Td Dept., 2009); Taddonio v. Wasserman-Taddonio, 51 A.D.3d 935 (2d Dept., 2008); Matter of Annette MR. v. John WR., 45 A.D.3d 1306 (4th Dept., 2007); Colicci v. Ruhm, 20 A.D.3d 891 (4th Dept., 2005); Niewadowski v. Dower, 286 A.D.2d 948 (4th Dept., 2001); Baraby v. Baraby, 250 A.D.2d 201, 205 (3d Dept., 1998). While none of these cases explains the rationale or roots of this public policy, we may assume that, consistent with the Family Court Act, the Domestic Relations Law and specifically the Child Support Standards Act, the public policy disfavoring recoupment must be found in a concern for the best interests of the children involved.

On this assumption, this measure incorporates this public policy while at the same time permitting courts, where justice warrants, to provide a fair result to a support obligor in circumstances in which a child will not be harmed. The measure does not call for a balancing of interests but, instead, includes lack of hardship to the children as an element of proof that an applicant for recoupment must demonstrate in addition to the overpayment itself. A court could order partial recoupment in order to obviate any hardship to the children. Inclusion of the requirement for proof that the amount of the recoupment itself, as well as both the method and rate of its collection, will not create a financial hardship for the custodial parent in meeting a child's financial needs is, in fact, consistent with case law in several other states that have required lack of hardship to children as a prerequisite for recoupment.(1)

The circumstances that give rise to overpayments of child support are varied. Notably, where a mother obtained a child support order in New York after a Connecticut order of support had expired upon the child's eighteenth birthday, the Court of Appeals, in Spencer v. Spencer, 10 N.Y.3d 60 (2008), reversed the New York order on the ground that Connecticut possessed exclusive, continuing jurisdiction under the Uniform Interstate Family Support Act. The Court remanded the matter, inter alia, for a determination regarding recoupment. Perhaps the most common situation where recoupment has been approved by courts has been where a court has ordered a downward modification of a child support order, but the county's Support Collection Unit has not immediately reduced the previously applicable automatic income deduction order. See, e.g., Francis v. Francis, 156 A.D.2d 637 (2d Dep't 1989). Recoupment also has been approved where an appellate court reversed a lower court order for child support on the ground that it involved a misapplication of, or faulty mathematical calculation under, the Child Support Standards Act. See, e.g., People ex rel. Breitstein f.k.a.. Aaronson v. Aaronson, 3 A.D. 3d 588 (2d Dep't 2004). And, it has been permitted where a parent prepaid child support for a period in which the child no longer lived with the recipient of the payments. See, e.g., Aulov v. Yukhananova,

31 Misc.3d 1226(A) (Sup. Ct., Queens Co., 2011). Finally, recoupment may be justified where a support obligor, who is making payments pursuant to a child support order, or a support obligor's employer, who is automatically deducting child support payments from the support obligor's paycheck, is unaware that the child has become emancipated through marriage.

For each of these situations, as well as others that may arise, the interests of justice may be shown to warrant recoupment of all or a portion of the overpayments, with the rate and mode of recoupment dictated by the particular facts of the case and needs, if any, of the child. This measure would provide a needed clarification that courts issuing or modifying child support orders have jurisdiction to vindicate those interests and would fill a long-standing procedural void in the State's Child Support Standards Act.

This measure, which would have no fiscal impact upon the State, would take effect on the ninetieth day after it shall have become a law.

2011-12 LEGISLATIVE HISTORY:

OCA 2011-19 Senate 4051 (Gallivan) (Ref to Jud)

Footnote

(1) See, e.g.. Griess v. Griess, 9 Neb. App. 105,608 N.W.2d 217 (2000); In re Marriage of DiFatta, 306 Ill. App. 3d 656, 239 Ill. Dec. 795, 714 N.E.2d 1092 (2d Dist. 1999); In re Marriage of Olsen, 229 Ill. App. 3d 107, 171 Ill. Dec. 39, 593 N.E.2d 859 (1st Dist. 1992); Zofcak v. Zofcak, 8 Conn. L. Rptr. 18, 1992 WL 360591 (Conn. Super. Ct. 1992); Pellar v. Pellar, 178 Mich. App. 29, 443 N.W.2d 427 (1989); Topper v. Topper, 553 A.2d 639 (Del. 1988). See generally, "Right to Credit on Child Support for Previous Overpayment to Custodial Parent for Minor Child While a Child is Not Living With Obligor Parent," 7 A.L.R.6th 411 (2005).