Friday, January 2, 2015


From Whitaker v Case, 2014 NY Slip Op 07707, 3rd Dept 11-13-14:

"We turn next to Supreme Court's directive retroactively suspending the wife's child support obligation and refunding certain child support made, challenged by both the husband and the attorney for the children [FN4]. A noncustodial parent's duty to support his or her children until the age of 21 (see Family Ct Act § 413 [1] [a]) may be suspended where he or she establishes that the custodial parent "wrongfully interfered with or withheld visitation" (Matter of Luke v Luke, 90 AD3d 1179, 1182 [2011]; see Domestic Relations Law § 241; Usack v Usack, 17 AD3d 736, 737-738 [2005]). Here, Supreme Court's decision describes a household rife with animosity and overtones of domestic violence. Indeed, the protracted hostility between the parties led the court to grant a mutual divorce pursuant to Domestic Relations Law § 170 (1) because "both [were] batterers and BOTH [were] victims." After one particularly abusive event, the wife left the household and the court ordered her and the children to engage in therapeutic visitation, with the husband's assistance. Regrettably, these sessions failed and were discontinued in March 2010, and the children refused further contact with the wife. In our view, while the record shows that the wife's behavior was not above reproach, it also supports the court's finding that the husband behaved badly in both his demeanor and his efforts to promote therapeutic counseling. Notably, for example, the initial therapeutic counselor asserted that he undermined the therapeutic process, and the court-appointed psychologist went even further, describing the husband as a "parent alienator" who "brainwashed" the children against the wife. Accordingly, we find a reasoned [*4]basis in this record for Supreme Court's determination to suspend the wife's child support obligations pending the husband's demonstration of a good faith effort to assist in the therapeutic process undoubtedly needed to reunite the wife with the children. Further, there is no indication that this remedy presented any risk to the children becoming public charges (see Usack v Usack, 17 AD3d at 740).

Upon its finding of interference, Supreme Court was authorized to suspend child support payments (see Domestic Relations Law § 241; Alan D. Sheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 241 at 22-23). Here, during the pendency of her application to suspend her child support obligation, the wife paid child support directly to the husband from November 2009 through April 22, 2011. Thereafter, pursuant to an order entered May 5, 2011, the wife paid child support to the support collection unit to be held pending resolution of her interference claim. Under the circumstances presented, we perceive no abuse of discretion in the court's determination to permit the wife's child support payments to be held in escrow during the pendency of the issue (see Matter of Lew v Sobel, 91 AD3d 648, 648 [2012]). Similarly, we find that, under the circumstances, the court properly suspended her child support obligation retroactively, but only to the date the escrow fund was established (compare Matter of Luke v Luke, 90 AD3d at 1182; Matter of Alexander v Alexander, 129 AD2d 882, 884 [1987]) and directed the return of the escrowed monies to her. In contrast, we find that Supreme Court improperly adjusted the distributive award payable to the wife to reimburse her for the child support payments that she actually made to the husband for the benefit of the children during the pendency of her application. In our view, this adjustment violated the "strong public policy against restitution or recoupment of support overpayments" (Johnson v Chapin, 12 NY3d 461, 466 [2009] [internal quotation marks and citation omitted]; see Katz v Katz, 55 AD3d 680, 683 [2008]). We see no reason to depart from that policy in this case."

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