CHILD SUPPORT - OVERPAYMENTS

Matter of Collette v Collette, 2020 NY Slip Op 06778, Decided on November 18, 2020, Appellate Division, Second Department:

"The parties were married and had two children together. The parties were subsequently divorced, and the father was obligated to pay the mother child support. A money judgment dated January 13, 2011 (hereinafter the money judgment), was entered against the father and in favor of the mother in the sum of $14,935.33 for child support arrears. In December 2018, the father filed a petition seeking, among other things, a determination that the money judgment had been satisfied.

In an order dated July 9, 2019, made after a hearing, a Support Magistrate, inter alia, vacated the arrears set forth in the money judgment as having already been satisfied, and directed the Support Collection Unit to stop enforcing the money judgment. In addition, the Support Magistrate determined that the father was entitled to a credit in the sum of $12,270.65 based on overpayments of child support, to be applied to the father's future child support payments or, in the alternative, to his obligation to pay his pro rata share of unreimbursed medical expenses and/or educational expenses. In an order dated November 4, 2019, the Family Court denied the mother's [*2]objections to the order dated July 9, 2019. The mother appeals.

We agree with the Family Court's determination denying the mother's objections to so much of the Support Magistrate's order dated July 9, 2019, as vacated the sum of $14,935.33 in arrears against the father set forth in the money judgment, directed the Support Collection Unit to stop enforcing that money judgment, and awarded the father a credit in the sum of $12,270.65. "Great deference should be given to the determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered" (Matter of Musarra v Musarra, 28 AD3d 668, 669; see Matter of Manocchio v Manocchio, 16 AD3d 1126, 1128). Contrary to the mother's contention, the record supports the Support Magistrate's finding that the father satisfied the money judgment.

However, "[t]here 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 Matter of McGovern v McGovern, 148 AD3d 900, 902). "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" (Matter of McGovern v McGovern, 148 AD3d at 902 [internal quotation marks omitted]; see Rader v Rader, 54 AD3d 919, 920). Therefore, the recoupment of child support payments is only appropriate under limited circumstances (see Matter of McGovern v McGovern, 148 AD3d at 902; Rader v Rader, 54 AD3d at 920; People ex rel. Breitstein v Aaronson, 3 AD3d 588, 589).

Here, there is no basis to conclude that an exception to the strong public policy against recoupment of child support overpayment exists. Thus, the Family Court improvidently exercised its discretion in denying the mother's objection to so much of the Support Magistrate's order dated July 9, 2019, as determined that the father was entitled to a credit against his future child support obligation based on prior overpayments of child support (see Matter of McGovern v McGovern, 148 AD3d at 902; Smulczeski v Smulczeski, 128 AD3d 670, 671; Coull v Rottman, 35 AD3d 198, 200). However, inasmuch as public policy does not forbid offsetting add-on expenses against an overpayment of child support (see Matter of Goehringer v Vozza-Nicolosi, 139 AD3d 949; Coull v Rottman, 35 AD3d at 201), we agree with the Support Magistrate's determination that the father may use the overpayments to offset his share of add-on expenses, such as educational expenses and unreimbursed medical expenses (see Matter of McGovern v McGovern, 148 AD3d at 902; Matter of Fitzgerald v Corps, 86 AD3d 611, 612)."

RECOUPMENT OF CHILD SUPPORT OVERPAYMENTS?

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)."

THAT RENT OVERCHARGE CASE

The case in the news: appellate court rules that an Upper West Side man has been illegally overcharged by his landlord for the last 16 year and has been rewarded $900K in restitution and had his rent stabilized at his $2.5 million apartment for under $800/month.

The lower court: https://scholar.google.com/scholar_case?case=12779121929104210153&q=Altschuler+v+Jobman&hl=en&as_sdt=4,33

The appellate court:  http://www.nycourts.gov/reporter/3dseries/2016/2016_00035.htm

FEMA REPAYMENT PROCESS

In yesterday's Newsday, the front page story centered on FEMA's claw back attempts on Sandy victims who received overpayments.

We all know that in Louisiana, etc. was at the forefront of FEMA issues due to Hurricane Katrina and a Louisiana legal group put together a pamphlet "FEMA Wants Money Back? Self-Help Guide to the Debt Repayment Process":

https://www.google.com/search?q=how+to+appeal+FEMA+claim+for+overpayment&ie=utf-8&oe=utf-8

UNEMPLOYMENT INSURANCE - OVERPAYMENTS

Now in order to help us understand what happens in the event of an overpayment, let us first look at the statute, New York Labor Law Section 597:

" 597. Initial determination. 1. Issuance. The validity of the claim
and the amount of benefits payable to the claimant shall be determined
in accordance with the regulations and procedure established by the
commissioner and, when such determination is issued by the commissioner,
it shall be deemed the initial determination of the claim.
2. Obtaining information necessary for determinations. (a) When filing
an original claim, each claimant shall furnish to the commissioner all
information which the commissioner shall require concerning his or her
prior employment.
(b) Whenever a claimant's base period includes a completed calendar
quarter for which a wage data report is not due or has not been received
and the claimant provides information as required by the commissioner,
the commissioner shall determine such claimant's entitlement and benefit
rate using the information the claimant provided for such quarter.
However, in those instances where the claimant is unable to provide such
information to the commissioner's satisfaction, the commissioner may
request the employer to provide the amount of remuneration paid to such
individual. The commissioner shall notify each base period employer upon
the establishment of a valid original claim, of such claim. If an
employer provides new or corrected information in response to the
initial notice of monetary entitlement, adjustments to the claimant's
benefit rate and adjustments to the employer's experience rating account
shall be prospective as of the date such information was received by the
department.
(c) Notwithstanding paragraph (b) of this subdivision, adjustments to
the claimant's benefit rate and adjustment to the experience rating
charges to the employers' accounts will be retroactive to the beginning
of the benefit claim in the following circumstances:
(i) the new or corrected information results in a higher benefit rate,
or
(ii) the new or corrected information results in the claimant's
failure to establish a valid original claim, or
(ii) the amount of the previously established benefit rate was based
upon the claimant's willful false statement or representation.
3. Limitation on review of determinations. Any determination regarding
a benefit claim may, in the absence of fraud or wilful
misrepresentation, be reviewed only within one year from the date it is
issued because of new or corrected information, or, if the review is
based thereon, within six months from a retroactive payment of
remuneration, provided that no decision on the merits of the case has
been made upon hearing or appeal. Such review shall be conducted and a
new determination issued in accordance with the provisions of this
article and regulations and procedure prescribed thereunder with respect
to the adjudication and payment of claims, including the right of
appeal.
4. Effect of review. Whenever a new determination in accordance with
the preceding subdivision or a decision by a referee, the appeal board,
or a court results in a decrease or denial of benefits previously
allowed, such new determination or decision, unless it shall be based
upon a retroactive payment of remuneration, shall not affect the rights
to any benefits already paid under the authority of the prior
determination or decision provided they were accepted by the claimant in
good faith and the claimant did not make any false statement or
representation and did not wilfully conceal any pertinent fact in
connection with his or her claim for benefits."

UNEMPLOYMENT INSURANCE - OVERPAYMENTS

A recent consultation revealed the following. Claimant was terminated due to lay off and filed for unemployment benefits. Claimant received several weeks of benefits. Employer filed objection and during investigation, Claimant did not respond to investigation because Claimant found new employment. This was a mistake because the Department of Labor, having no evidence to the contrary, decided that Employer's objection would be granted and penalized Claimant. Even though the amount in dispute is small, Claimant must have a hearing to eliminate not only the overpayment but the additional penalties involved. This is from a handbook on representing yourself in an unemployment insurance hearing from MFY Legal Services which works in concert with community organizations to provide free civil legal assistance to those in greatest need:

"You are not obligated to refund overpayments if you accepted them in good faith (you believed you were entitled to the benefits), you did not make any false statements, AND you did not willfully conceal any pertinent fact in connection with your claim for benefits. New York Labor Law § 597.

You can be required to refund overpayments if you made a false statement of fact in connection with your claim for benefits, even if the false statement was inadvertent. For example, you could be required to refund benefits if you made an incorrect statement about the amount of your base period earnings and weeks of employment, even if it was an accident. A.B. 257,498; and A-750-2106.

If you made a statement that was an “error of law,” but was not a false statement of fact you cannot be required to refund the benefits. For example, if you reported a total lack of employment, but it is later determined that you were doing activities that actually constituted employment, your statement may not be a false statement of fact if an ordinary person would not have considered him/herself employed under those circumstances and you in fact did not realize that your activities were 'employment.' See Claim of Valvo, 57 N.Y.2d 116, 440 N.E.2d 780, 454 N.Y.S.2d 695 (1982).

If the false statement was made inadvertently (i.e., you did not know it was false), the DOL will collect the overpayment by collecting 50% of your future benefits. 12 NYCRR § 470.5"