For what expenses will a support payor (here, the husband) receive credit against the retroactive support award made incident to the final divorce determination?
The Second Department clarified the rules in its May 14, 2014 decision in McKay v. Groesbeck.
Six years earlier (!), on a prior appeal (Groesbeck v. Groesbeck, 51 A.D.3d 722, 858 N.Y.S.2d 707 ), the Second Department modified the portions of the parties’ judgment of divorce to make the child support and maintenance awards retroactive to the date the Summons (with notice) requesting such relief was filed. The Court sent the case back to the Supreme Court to calculate the amount of retroactive child support and maintenance, less any amount of maintenance and child support already paid.
Rockland County Supreme Court Acting Justice Victor J. Alfieri, Jr., determined that the husband was not entitled to any credits for any voluntary payments (not made pursuant to a court order). Justice Alfieri directed the husband to pay $28,500 for maintenance arrears and $37,902 for child support arrears.
The Second Department here modified that determination. Once again, the appellate court noted a party’s maintenance and child support obligations are retroactive to the date of the application therefor; here, the Summons with Notice. Any retroactive award must take into account any amount of temporary maintenance or child support which has been paid.
Generally, voluntary payments made by a parent for the benefit of his or her children may not be credited against retroactive awards. Further, a party is not entitled to a credit for payments made to satisfy that party’s own legal obligations that were not made pursuant to a pendente lite order of support.
However, a party is entitled to a credit for payments made to satisfy the other spouse’s legal obligations. Here, the husband should have received a credit towards arrears for any payments he made toward the wife’s car payments and insurance. The husband also should have received credit for one half of the payments he made toward the mortgage and carrying charges on the marital home, as those payments were made to satisfy the plaintiff’s legal obligations.
The matter was once again sent back to Supreme Court for calculations.
Counseling a party as to what payments to make and how, and whether or not to seek a temporary order concerning such payments, is difficult. It is not an exact science, and often involves a balancing of interests and judgment calls.
Randy J. Perlmutter, of Kantrowitz, Goldhamer & Graifman, P.C., of Chestnut Ridge, represented the husband. Julia Masch, of Masch, Coffey & Associates, LLP, of New City, represented the wife.