TITLE OF BILL:
to amend the family court act and the domestic relations law, in
relation to recoupment of overpayments of child support in family and
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
Neither the Family Court Act nor the Domestic Relations Law address an
issue that is frequently presented in both Family and Supreme Court
proceedings, that is, the question of whether a support obligor who
has overpaid on a child support order may recoup all or part of those
payments. New York's statutory framework is silent as to whether
recoupment should be available at all and, if so, what court, if any,
should entertain such applications, 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 in particular cases often favor court
intervention to provide some redress to a party who has overpaid,
this measure is offered fills this substantive and procedural void.
First, the measure provides that the.court that issued or modified the
child support order for which an overpayment is alleged possesses
continuing jurisdiction over an application for recoupment. This
would make clear that such applications may not be made in a local
small claims part of the New York City Civil Court, a District Court,
an upstate City Court, or a Town or Village Justice Court, but must
be made in the court that issued or modified the child support order
in question. Nor may it be made in a case in which the alleged
overpayment covered a period prior to the existence of a child
support order (the ground for denial of recoupment in the Appellate
Division, Second Department, case of Foxx v. Foxx, 114 A.D.2d 605).
Second, the measure provides a standard for determining whether
recoupment would be appropriate, that is, "where the interests of
justice require," as well as specification of the proof required. The
applicant would need to provide proof of the overpayment, as well as
proof "that 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 would be required to 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
on the basis of a long-standing public policy against recoupment.
See, e.g., Taddonio v. Wasserman-Taddonio, 51 A.D.3d 935 (2d Dept.,
Matter of Annette M.R. v. John W.R., 45 A.D.3d 1306 (4th Dept., 2007);
Colicci v. Ruhm. 20 AD.3d 891 (4th Dept., 2005); Niewadowski v.
Dower, 286 A.D.2d 948 (4th Dept., 2001); Haraby v. Haraby, 250 A.D.2d
201,205 (3d Dept., 1998). However, none of these cases explain the
rationale or roots of this public policy. Nonetheless, it is safe to
assume that, consistent with the underpinnings of the Family Court
Act, the Domestic Relations Law and specifically the Child Support
Standards Act, the public policy disfavoring recoupment is rooted in
a concern for the best interests of the children involved.
Assuming this is the case, this measure is carefully tailored to
incorporate this public policy while at the same time permitting the
courts, where justice warrants, to provide a fair result to a support
obligor in circumstances in which the child or children will not be
harmed. The measure is not suggesting balancing of interests but,
instead, includes lack of hardship to the children as an element of
proof that the applicant for recoupment must demonstrate in addition
to the overpayment itself. Inclusion of the requirement for proof
that 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 the child's or children's financial needs
is, in fact, consistent with case law in several other states that
have required lack of hardship to the children as a prerequisite for
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 60,853 N.Y.S.2d 274 (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 example where recoupment may be
appropriate occurs when a court orders a downward modification of a
child support order, but where the Support Collection Unit of the
count Department of Social Services does not immediately reduce the
previously applicable automatic income deduction order. See, e.g.,
Francis v. Francis, 156 A.D.2d 637 (2d Dep't 1989). Another example
occurs when an appellate court reverses 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.
Breitsteinf.k.a.. Aaronson v. Aaronson, 3 A.D. 3d 588 (2d Dep't 2004).
Finally, an overpayment may result if 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, who is the beneficiary of the order, has become emancipated
For each of these situations, as well as other that may arise, the
interests of justice may be shown to warrant recoupment of
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 New
York'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.
None to the state.
This act shall take effect on the ninetieth day after it shall have
become a law.