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

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S4051-2011 Actions

• Jun 13, 2012: referred to judiciary
• Jun 13, 2012: DELIVERED TO ASSEMBLY
• Jun 13, 2012: PASSED SENATE
• Jun 13, 2012: ORDERED TO THIRD READING CAL.1203
• Jun 13, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
• May 15, 2012: PRINT NUMBER 4051A
• May 15, 2012: AMEND AND RECOMMIT TO JUDICIARY
• Jan 4, 2012: REFERRED TO JUDICIARY
• Jan 4, 2012: returned to senate
• Jan 4, 2012: died in assembly
• May 2, 2011: referred to judiciary
• May 2, 2011: DELIVERED TO ASSEMBLY
• May 2, 2011: PASSED SENATE
• Mar 31, 2011: ADVANCED TO THIRD READING
• Mar 30, 2011: 2ND REPORT CAL.
• Mar 29, 2011: 1ST REPORT CAL.272
• Mar 15, 2011: REFERRED TO JUDICIARY

S4051-2011 Meetings

Judiciary: Mar 29, 2011

S4051-2011 Calendars

Active List: May 2, 2011 , Floor Calendar: Mar 30, 2011 , Floor Calendar: Mar 31, 2011 , Floor Calendar: Apr 4, 2011 , Floor Calendar: Apr 5, 2011 , Floor Calendar: Apr 6, 2011 , Floor Calendar: Apr 11, 2011 , Floor Calendar: Apr 12, 2011 , Floor Calendar: Apr 13, 2011 , Floor Calendar: May 2, 2011

S4051-2011 Votes

S4051-2011 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.

S4051-2011 Text

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

                                    4051

                         2011-2012 Regular Sessions

                              I N  SENATE

                               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