This bill has been amended

Bill S4051-2011

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

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

Details

Actions

  • 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

Meetings

Votes

VOTE: COMMITTEE VOTE: - Judiciary - Mar 29, 2011
Ayes (21): Bonacic, DeFrancisco, Flanagan, Fuschillo, Lanza, LaValle, Little, Nozzolio, O'Mara, Ranzenhofer, Saland, Zeldin, Hassell-Thompson, Adams, Breslin, Dilan, Espaillat, Gianaris, Krueger, Serrano, Stavisky
Ayes W/R (2): Perkins, Squadron

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 4051 2011-2012 Regular Sessions IN 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.

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