In its March 21, 2018 decision in Elkins v. Mizrahi, the Appellate Division, Second Department, struck a credit issued at the time a father’s new child support obligation was established. That determination tacitly affirmed the new obligation, after a lower court found that a prior waiver of future child support, to which both parties had stipulated, violated public policy. However, the same lower court had previously discharged prior arrears and terminated the father’s support obligation in the order entered that had incorporated that prior stipulation of the parties.

The parties, who have three children together, were divorced in March 2008. In 2014, the parties entered into a stipulation whereby they agreed, inter alia, that the father would pay the mother a lump sum of $50,000.00 in full satisfaction of his accrued child support arrears, which, at that time, exceeded $70,000.00, and that the father’s child support obligation would be terminated going forward. The mother received the $50,000.00 payment on November 21, 2014.

In an order dated January 29, 2015, Nassau County Family Court Judge Ellen R. Greenberg gave effect to the stipulation, terminated the father’s future child support obligation, and directed that the father’s remaining child support arrears of $21,385.46 be deemed satisfied.

In July 2015, the mother nevertheless filed a petition for support with respect to the parties’ two youngest children. Support Magistrate Lisa M. Williams granted the father’s motion to dismiss the petition on the basis of the 2014 waiver. However, Judge Greenberg upheld the mother’s objections, and reversed Magistrate Williams’ dismissal; the stipulation was void and unenforceable as against public policy to the extent that it purported to waive future child support. The matter was referred to a hearing to fix the new support obligation.

Magistrate Williams fixed that obligation and made it retroactive to the date of the new petition. However, the Magistrate also determined that the father should be awarded a credit of $28,614.54 against his new child support obligation. That sum was calculated by taking the previously paid $50,000.00 and deducting therefrom the pre-stipulation remaining prior child support arrears of $21,385.46.

The mother objected, inter alia, to the Support Magistrate’s calculation, contending that the father was not entitled to any child support credit; his prior payment of $50,000.00 was in satisfaction of $71,385.46 of prior arrears. Judge Greenberg denied the mother’s objections and allowed the credit to stand. The mother appealed.

The Second Department reversed. The appellate court noted that the father’s previous payment of $50,000.00 did not result in any overpayment of child support. To the contrary, the payment discharged $71,385.46 in arrears. Thus, the father was not entitled to any credit with respect to the new child support obligation effective as of the date of the mother’s 2015 petition.

Kevin E. Rockitter, P.C., of Woodbury, represented the mother.

I thank Mr. Rockitter for supplying some of the missing facts, including the father’s incarceration on more than one occasion for prior non-payments of support. Additionally, it was noted that there was no argument of the res judicata effect of the January 29, 2015 order that validated the waiver; no discussion that in the absence of an appeal [no appeal may be taken from an order entered on consent], the mother needed first to move to vacate the stipulation and order on public policy grounds. Query: if such had been done, would the previously terminated support obligation have been reinstated, with arrears accruing as of the date of the $50,000.00 payment.