Relates to recoupment of overpayments of child support in family and supreme court.
Ayes (60): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Johnson, Kennedy, Klein, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Storobin, Valesky, Young, Zeldin
Excused (2): Huntley, Krueger
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
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 addresses a question frequently presented in both Family and Supreme Court proceedings, i.e., whether a support obligor who has overpaid on a child support order may recoup all or part of the overpayment. New York's statutory framework is silent as to whether recoupment should be available at all and, if so, what court, if any, may entertain an application therefor, 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 favor court intervention to provide redress to a party who has overpaid in cases where the recipient of the overpayment has been unjustly enriched, we propose this measure to fill this substantive and procedural void.
First, this measure provides the court that issued or modified the child support order for which an overpayment is alleged with continuing jurisdiction over an application for recoupment. This would clarify that such an application may not be made in a small claims or other local court, but must be made in the court that issued or modified the child support order in question. In the case of an order issued by a Supreme Court without a reservation of exclusive jurisdiction, Family Court also could adjudicate a recoupment application. The measure also precludes an application for recoupment of payments made to cover a period prior to the existence of a child support order, which had been the ground for denial of recoupment in the Appellate Division, Second Department, case of Foxx v. Foxx, 114 A.D.2d 605 (3d Dept., 1985).
Second, the measure provides a standard for determining whether recoupment of all or part of an alleged overpayment is appropriate, i.e., "where the interests of justice require," as well as specification of the proof required. The applicant must provide proof of the overpayment, as well as proof "that the amount of 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 must 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 for long-standing public policy reasons. See, e.g., Mairs v. Mairs, 61 A.D.3d 1204 (3Td Dept., 2009); Taddonio v. Wasserman-Taddonio, 51 A.D.3d 935 (2d Dept., 2008); Matter of Annette MR. v. John WR., 45 A.D.3d 1306 (4th Dept., 2007); Colicci v. Ruhm, 20 A.D.3d 891 (4th Dept., 2005); Niewadowski v. Dower, 286 A.D.2d 948 (4th Dept., 2001); Baraby v. Baraby, 250 A.D.2d 201, 205 (3d Dept., 1998). While none of these cases explains the rationale or roots of this public policy, we may assume that, consistent with the Family Court Act, the Domestic Relations Law and specifically the Child Support Standards Act, the public policy disfavoring recoupment must be found in a concern for the best interests of the children involved.
On this assumption, this measure incorporates this public policy while at the same time permitting courts, where justice warrants, to provide a fair result to a support obligor in circumstances in which a child will not be harmed. The measure does not call for a balancing of interests but, instead, includes lack of hardship to the children as an element of proof that an applicant for recoupment must demonstrate in addition to the overpayment itself. A court could order partial recoupment in order to obviate any hardship to the children. Inclusion of the requirement for proof that the amount of 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 a child's financial needs is, in fact, consistent with case law in several other states that have required lack of hardship to children as a prerequisite for recoupment.(1)
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 (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 situation where recoupment has been approved by courts has been where a court has ordered a downward modification of a child support order, but the county's Support Collection Unit has not immediately reduced the previously applicable automatic income deduction order. See, e.g., Francis v. Francis, 156 A.D.2d 637 (2d Dep't 1989). Recoupment also has been approved where an appellate court reversed 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. Breitstein f.k.a.. Aaronson v. Aaronson, 3 A.D. 3d 588 (2d Dep't 2004). And, it has been permitted where a parent prepaid child support for a period in which the child no longer lived with the recipient of the payments. See, e.g., Aulov v. Yukhananova,
31 Misc.3d 1226(A) (Sup. Ct., Queens Co., 2011). Finally, recoupment may be justified where 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 has become emancipated through marriage.
For each of these situations, as well as others that may arise, the interests of justice may be shown to warrant recoupment of all or a portion of the 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 the State'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.
2011-12 LEGISLATIVE HISTORY:
OCA 2011-19 Senate 4051 (Gallivan) (Ref to Jud)
FOOTNOTE: (1) See, e.g.. Griess v. Griess, 9 Neb. App. 105,608 N.W.2d 217 (2000); In re Marriage of DiFatta, 306 Ill. App. 3d 656, 239 Ill. Dec. 795, 714 N.E.2d 1092 (2d Dist. 1999); In re Marriage of Olsen, 229 Ill. App. 3d 107, 171 Ill. Dec. 39, 593 N.E.2d 859 (1st Dist. 1992); Zofcak v. Zofcak, 8 Conn. L. Rptr. 18, 1992 WL 360591 (Conn. Super. Ct. 1992); Pellar v. Pellar, 178 Mich. App. 29, 443 N.W.2d 427 (1989); Topper v. Topper, 553 A.2d 639 (Del. 1988). See generally, "Right to Credit on Child Support for Previous Overpayment to Custodial Parent for Minor Child While a Child is Not Living With Obligor Parent," 7 A.L.R.6th 411 (2005).
STATE OF NEW YORK ________________________________________________________________________ 4051--A 2011-2012 Regular Sessions IN SENATE March 15, 2011 ___________Introduced by Sens. GALLIVAN, AVELLA -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- recommitted to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 AN ORDER WAS ISSUED BY THE SUPREME COURT WITHOUT A RESERVATION OF JURISDICTION OR WAS TRANS- FERRED OR REFERRED TO THE FAMILY COURT, THE FAMILY COURT MAY EXERCISE JURISDICTION OVER AN APPLICATION FOR RECOUPMENT. WHERE THE INTERESTS OF JUSTICE REQUIRE, THE COURT MAY ALLOW RECOUPMENT OF ALL OR PART OF THE OVERPAYMENT OF A CHILD SUPPORT OBLIGATION UPON PROOF OF THE OVERPAYMENT AND UPON PROOF THAT THE AMOUNT OF 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. 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 AN ORDER WAS ISSUED BY THE SUPREMEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09521-02-2 S. 4051--A 2
COURT WITHOUT A RESERVATION OF JURISDICTION OR WAS TRANSFERRED OR REFERRED TO THE FAMILY COURT, THE FAMILY COURT MAY EXERCISE JURISDICTION OVER AN APPLICATION FOR RECOUPMENT. WHERE THE INTERESTS OF JUSTICE REQUIRE, THE COURT MAY ALLOW RECOUPMENT OF ALL OR PART OF THE OVERPAY- MENT OF A CHILD SUPPORT OBLIGATION UPON PROOF OF THE OVERPAYMENT AND UPON PROOF THAT THE AMOUNT OF 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. 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.