Tuesday, June 6, 2017


A common question raised by noncustodial parents is whether credits can be given for overpayments of child support. MATTER OF McGOVERN v. McGovern, 2017 NY Slip Op 1862 - NY: Appellate Div., 2nd Dept. 2017:

""There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support" (Matter of Taddonio v Wasserman-Taddonio, 51 AD3d 935, 936 [internal quotation marks omitted]; see Johnson v Chapin, 12 NY3d 461, 466). "The reason for this policy is that . . . child support payments are deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended' if the award is thereafter reversed or modified" (Rader v Rader, 54 AD3d 919, 920, quoting Coleman v Coleman, 61 AD2d 757, 758). Thus, recoupment of child support payments is only appropriate under "limited circumstances" (People ex rel. Breitstein v Aaronson, 3 AD3d 588, 589).

On this record, there is no basis for concluding that any exception to the strong public policy against restitution or recoupment of support overpayments exists. Consequently, the Family Court improvidently exercised its discretion in denying the mother's objection to the Support Magistrate's determination that the father was entitled to a credit against his child support obligation based on prior overpayments of child support (see Smulczeski v Smulczeski, 128 AD3d 670, 671; Coull v Rottman, 35 AD3d 198, 200; Matter of Maksimyadis v Maksimyadis, 275 AD2d 459, 461; cf. People ex rel. Breitstein v Aaronson, 3 AD3d at 589; Matter of Thomas v Commissioner of Social Servs., 287 AD2d 642, 642-643).

However, "[w]hile child support overpayments may not be recovered by reducing future support payments, public policy does not forbid offsetting add-on expenses against an overpayment'" (Matter of Goehringer v Vozza-Nicolosi, 139 AD3d 949, 949-950, quoting Coull v Rottman, 35 AD3d at 201 [citation omitted]). Thus, although the overpayments may not be applied to the father's child support obligation, he may use the overpayments to offset his share of the add-on expenses, such as the educational expenses (see Matter of Fitzgerald v Corps, 86 AD3d 611, 612)."

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