senate Bill S4051

Amended

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

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 15 / Mar / 2011
    • REFERRED TO JUDICIARY
  • 29 / Mar / 2011
    • 1ST REPORT CAL.272
  • 30 / Mar / 2011
    • 2ND REPORT CAL.
  • 31 / Mar / 2011
    • ADVANCED TO THIRD READING
  • 02 / May / 2011
    • PASSED SENATE
  • 02 / May / 2011
    • DELIVERED TO ASSEMBLY
  • 02 / May / 2011
    • REFERRED TO JUDICIARY
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO JUDICIARY
  • 15 / May / 2012
    • AMEND AND RECOMMIT TO JUDICIARY
  • 15 / May / 2012
    • PRINT NUMBER 4051A
  • 13 / Jun / 2012
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 13 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1203
  • 13 / Jun / 2012
    • PASSED SENATE
  • 13 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 13 / Jun / 2012
    • REFERRED TO JUDICIARY

Summary

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

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Bill Details

Versions:
S4051
S4051A
Legislative Cycle:
2011-2012
Current Committee:
Assembly Judiciary
Law Section:
Family Court Act
Laws Affected:
Amd §451, Fam Ct Act; amd §240, Dom Rel L

Sponsor Memo

BILL NUMBER:S4051

TITLE OF BILL:
An act
to amend the family court act and the domestic relations law, in
relation to recoupment of overpayments of child support in family and
supreme court

JUSTIFICATION:
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.,
2008);
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
recoupment.

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
through marriage.

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.

LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None to the state.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4051

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 15, 2011
                               ___________

Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Judiciary

AN ACT to amend the family court act and the domestic relations law,  in
  relation  to recoupment of overpayments of child support in family and
  supreme court

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 451 of the family court act is amended by adding a
new subdivision 3 to read as follows:
  3. THE COURT THAT ISSUED A CHILD SUPPORT ORDER OR AN ORDER OF  MODIFI-
CATION  UNDER  THIS ACT HAS CONTINUING JURISDICTION OVER MOTIONS SEEKING
RECOUPMENT OF OVERPAYMENTS OF CHILD  SUPPORT.  WHERE  THE  INTERESTS  OF
JUSTICE  REQUIRE, THE COURT MAY ALLOW RECOUPMENT OF THE OVERPAYMENT OF A
CHILD SUPPORT OBLIGATION UPON PROOF OF THE OVERPAYMENT  AND  UPON  PROOF
THAT  THE  RECOUPMENT AND THE METHOD AND RATE OF ITS COLLECTION WILL NOT
SUBSTANTIALLY IMPAIR THE CUSTODIAL PARENT'S ABILITY TO MEET  THE  FINAN-
CIAL  NEEDS  OF THE CHILD OR CHILDREN. THE COURT SHALL STATE ITS REASONS
ON THE RECORD FOR ANY ORDER ISSUED UNDER THIS SUBDIVISION.
  S 2. Section 240 of the domestic relations law is amended by adding  a
new subdivision 6 to read as follows:
  6.  THE COURT THAT ISSUED A CHILD SUPPORT ORDER OR AN ORDER OF MODIFI-
CATION HAS CONTINUING JURISDICTION OVER MOTIONS  SEEKING  RECOUPMENT  OF
OVERPAYMENTS  OF  CHILD SUPPORT. WHERE THE INTERESTS OF JUSTICE REQUIRE,
THE COURT MAY ALLOW RECOUPMENT OF THE OVERPAYMENT  OF  A  CHILD  SUPPORT
OBLIGATION UPON PROOF OF THE OVERPAYMENT AND UPON PROOF THAT THE RECOUP-
MENT  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. THE COURT SHALL STATE ITS REASONS ON THE  RECORD  FOR
ANY ORDER ISSUED UNDER THIS SUBDIVISION.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09521-01-1

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