Child support overpayments, resulting from the retroactive application of a reduced child support award, may be recouped against future add-on expenses of the children. So held the Appellate Division, First Department, in its March 31, 2022 decision in Castelloe v. Fong.

That decision affirmed an Order of New York County Supreme Court Justice Michael L. Katz, which in turn confirmed the award of a Special Referee.

The appellate court upheld the Referee’s decision to impute $250,000.00 in annual income to the father. The Court also upheld the Referee’s decision to use a $250,000.00 cap to calculate the father’s child support obligation of $3,333.33 per month ($40,000.00 per year), finding that it was sufficient to meet the children’s “actual needs” to live an “appropriate lifestyle.” The trial evidence reflected the parties’ comfortable upper-middle-class lifestyle and that both parties had significant financial resources to support the use of a $250,000 cap.

The ultimate child support award, applied retroactively, resulted in a finding that the father had overpaid child support by $291,513.40. The First Department affirmed granting the father a credit in that amount against future add-on expenses. It was noted that it would violate public policy to allow the credit to future basic child support payments. That would effectively extinguish the father’s child support obligation.

While public policy forbids offsetting over payments against basic child support, it does not forbid offsetting against add-on expenses.

The issue of the recoupment of child support overpayments previously discussed in the April 22, 2019 blog post, Recouping Overpaid Child Support : Two Lessons and the March 20, 2017 post, Recoupment of Child Support Overpayments From Add-on Expenses (College); Not Future Support.

Allan E. Mayefsky, of Aronson Mayefsky & Sloan, LLP, of Manhattan, represented the father. Barry Abbott, of Schwartz Sladkus Reich Greenberg, of Manhattan, represented the mother.