BILL NUMBER:S4051A

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

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 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).