Two people fighting over money / business transaction / giving & taking money / shopping / divorce / power struggle / etc.

A decision last week of the Appellate Division, Second Department, points out that the rules concerning the recovery of overpayments of child support may not always be logical, and in the end may not best benefit the children the support was intended to benefit.

The parties in McGovern v. McGovern had executed a stipulation in 2007 that was incorporated but not merged into their judgment of divorce. The stipulation required the father to pay the mother child support each month for the parties’ two children. That obligation was to continue until, as is here relevant, one of the children began attending a residential college, at which point the child support obligation would be reduced. The stipulation also required the father to pay 60% of the children’s educational expenses, but allowed him to deduct any room and board payments which he made from his child support obligation.

In February 2014, the father filed a petition with the Westchester County Family Court seeking a downward modification of his child support obligation on the ground that the older child had started college in September 2011. The father also alleged that from September 2011 to February 2014, he overpaid child support because the Support Collection Unit failed to reduce his child support payments after the oldest child started college. As a result, the father requested an overpayment credit towards his child support obligation.

In June 2014, Support Magistrate Esther R. Furman temporarily suspended the father’s child support obligation pending further order of the Family Court. Ultimately, the Support Magistrate granted the father’s petition by downwardly modifying his child support obligation. Magistrate Furman also applied his prior child support overpayments retroactively to the period in which his support payments were suspended pursuant to court order. Family Court, Westchester County, Judge Nilda Morales Horowitz denied the mother’s objections to the Support Magistrate’s order. The mother appealed.

The Second Department noted:

There is strong public policy in this state against restitution or recoupment of the overpayment of child support. The reason for this policy is that . . . child support payments are deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended if the award is thereafter reversed or modified.

The appellate court held that on this record, there was no basis for concluding that any exception to the strong public policy against restitution or recoupment of support overpayments existed. Consequently, it was error for the Magistrate and Judge to hold that the father was entitled to a credit against his child support obligation based on prior overpayments of child support.

However, the Second Department held:

While child support overpayments may not be recovered by reducing future support payments, public policy does not forbid offsetting add-on expenses against an overpayment.

Thus, although the overpayments could not be applied to the father’s child support obligation, he was allowed to use the overpayments to offset his share of add-on expenses, such as the educational expenses.

Comment: It is not explained why the father waited 2½ years to seek to lower his child support.

First rule: don’t wait; and nothing less than a court order modifying the support obligation will do. Oral, and even written understandings will not be enough. Recoupment of overpayments of child support are rarely granted.

The public policy is not free from debate. The mother knew she was receiving more money than provided in her agreement. She was able to enjoy a lifestyle to which she was not entitled under the agreement. It was the parents’ agreement. Adjustments should be between the parents, even if those adjustments are delayed until the children are emancipated.

On the other hand, who is hurt by reducing the father’s obligation to pay for college expenses? There is no corresponding order obligating the mother to pick up the father’s share of reduced college expenses. The shortfall may have to be covered by the child through student loans not contemplated by the parties’ agreement.

Benefiting the mother at the expense of the child would not seem to be consistent with public policy.

Arnold S. Kronick, Esq., of White Plains, NY, represented the mother. Donna E. Abrams, Esq., of Harold, Salant, Strassfield & Spielberg, of White Plains, represented the father.