If you delay going to court after an event that changes rights and obligations, you do so at your peril.
In Fortgang v. Fortgang, the parties were divorced in May 2011. Under their stipulation of settlement, the parties agreed that the husband would pay $2,600 per month in basic child support for the parties’ two children. The stipulation provided that this child support obligation would decrease when the parties’ older child became emancipated, but did not provide the reduced amount.
In December 2013, the older child became emancipated, but the husband continued to pay the full child support amount. In November 2015, the parties’ younger child became emancipated, but the husband continued to pay child support for several months thereafter.
In December 2016, in response to motion by the wife, the husband cross-moved, for the first time, to recoup child support overpayments. Suffolk County Supreme Court Justice David T. Reilly granted the husband’s cross motion, and awarded him a money judgment against the wife for $30,422.32 in overpaid child support.
Christopher Chimeri, who represented the wife on the appeal, notes the husband provided no statement of net worth, no financial documentation evidencing his financial condition, and no admissible proof to warrant a modification of support, even if he had made a timely motion.
The wife appealed. The Appellate Division, Second Department, reversed:.
There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support.
In its March, 2019 decision, the Second Department explained the rationale behind this policy: child support payments are deemed to have been used to support the children, so no funds exist from which one may recoup moneys so expended. [Comment: that rationale would not seem to apply if there had been arrears; the overpayments would never have been used if money was still owed for prior arrears.]
Here, the appellate court held that the husband failed to demonstrate the existence of any circumstances which countered New York’s strong public policy against reimbursement of child support overpayments.
Mr. Chimeri commends the Second Department for comparatively consistent holdings establishing more bright line rules when it comes to child support issues. It serves the bench and bar, as well as the public at large, “to be able to have at least a reasonable expectation as to how issues surrounding the economic support of children will conclude if litigation is involved. Reasonable certainty, or at least predictability, on these issues, means that ‘junior’s’ college fund does not go to retainer fees doing battle over child support,” with greater resources able to be allocated directly to the children.
Comment: There are two lessons here. First, divorce settlements should do what they can to predict and resolve the issues arising in the future. Here, that would have meant providing the reduced amount of child support, or at least the precise method by which to determine it. Second, if an issue is not resolved by the agreement, get to court, or risk being prejudiced.