The calculation of a retroactive periodic child support award to the wife and offsetting that award with credits for a retroactive award to the husband for the wife’s unpaid share of add-on expenses was the subject of the September 30, 2020 decision of the Appellate Division, Second Department in Levi v. Levi.

The parties were married in 2003 and had two children. On May 7, 2014, the husband commenced this action for a divorce. Pursuant to a pendente lite order dated September 3, 2014, the husband was directed to pay the wife $500 per month for temporary spousal maintenance, $750 per month for temporary child support, 100% of unreimbursed medical, dental, and eyeglasses expenses for the wife and the children, and to pay the expenses for certain therapists and tutors for the children.

At trial, it was established that the husband was employed full-time by the MTA, then earning a salary of $ 99,000 annually. The wife, a licensed optician, worked part-time at a neurovisual practice, earning $20 per hour, for an average of 25 hours per week.

In a February 8, 2017 decision after trial, Supreme Court Nassau County Justice Robert A. Bruno determined that the wife’s annual earnings of $26,000 represented 21% of the parties’ combined income. The trial court calculated the husband’s child support obligation under the Child Support Standards Act at $1,899.91 monthly, awarding that sum retroactive to the date of the wife’s application for pendente lite support.

Child support arrears were calculated to be $66,496.85, using the husband’s income at the time of trial to base the award retroactive to mid-2014, some 2½ years earlier when the husband was earning less. The husband appealed.

The Second Department upheld the child support-related determinations.

The Court held that Justice Bruno had not improvidently exercised his discretion when declining to impute income to the wife greater than the $26,000 in earnings to which she testified at trial.

Moreover, the Second Department rejected the husband’s contention that it was error for Justice Bruno to use the husband’s income at the time of trial to compute child support since the commencement of the action. The court was not required to reduce the husband’s retroactive child support obligation due to the fact that the husband had earned a lower salary in 2014 and 2015 as compared to his earnings at the time of trial.

The Second Department relied on Matter of Feliciano v. Elghouayel, 164 A.D.3d 1238, 83 N.Y.S.3d 587 (2nd Dept. 2018). There, the mother had filed a petition for child support in July, 2015. In an order dated September 1, 2016, the Support Magistrate directed the father to pay $200 per month in basic child support, retroactive to the date of the petition. However, in Feliciano, the issue for the Court was whether it was appropriate for the Support Magistrate to use that father’s income at the time of the 2016 hearing, rather than being bound by the father’s 2015 tax return.

When justifying the Magistrate’s decision, the Second Department there noted that while the child support analysis begins with a review of the last-filed tax return, “‘[t]he level of child support is determined by the parents’ ability to provide for their children.” Moreover, it was noted that “the support magistrate is afforded considerable discretion in determining whether to impute income to a parent based upon the parent’s past income or demonstrated future potential earnings, rather than relying on the parent’s account of his or her finances.” “The court is also permitted to consider current income figures for the tax year not yet completed.” It was proper for the Magistrate to impute income to the father based upon his income earned in the first half of 2016.

Comment: Here, however, there was no income imputed. There was no suggestion that one could not accurately determine the husband’s actual income each year as an MTA W-2 employee. Nevertheless, the date-of-trial income was applied retroactively for some 2½ years.

On the other hand, the Second Department did agree with the husband that the trial court should have credited him for the 21% of unreimbursed medical, dental, and vision expenses, as well as expenses for tutors and therapists. The husband had overpaid these expenses under the 2014 pendente lite order that required him to pay 100% of these expenses.

However, the Second Department did not offset that retroactive credit against the retroactive child support award. The Court noted the strong public policy against restitution or recoupment of the overpayment of child support, citing Hart v. Rosenthal, 173 A.D.3d 695, 103 N.Y.S.3d 107 (2nd Dept. 2019). The Court ruled that to the extent the husband overpaid those expenses, such overpayment should be offset only against future add-on expenses, citing Matter of McGovern v. McGovern, 148 A.D.3d 900, 50 N.Y.S.3d 408 (2nd Dept. 2017).

Comment: Here, the husband was not asking to credit his overpayment of past add-on expenses against child support that the wife had already spent for the benefit of the children. The mother was not being asked to give back money that was gone. Also, the husband was not asking for a credit against his future periodic payments. As noted in McGovern, “child support overpayments may not be recovered by reducing future support payments.” As noted in Hart, “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.”

Rather, awarding the husband a credit against the retroactive base child support obligation simply reflected giving the husband the money the wife should have been giving him at the same time the husband should have been paying additional support to the wife. The wife would not have to reach into her own pocket to give money to the husband.

Ian S. Mednick, P.C., of Hauppauge, represented the husband. Joseph J. Sciacca (Mauro Lilling Naparty, LLP, of Woodbury, NY [Matthew W. Naparty and Seth M. Weinberg], of counsel), represented the wife.