Judge Says Father Due Credit for Support Overpayment

, New York Law Journal

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ALBANY - A father who overpaid child support by $29,000 due to a court's error is entitled to a credit, despite the public policy rule that generally eschews restitution or recoupment in support cases, an upstate Family Court judge has ruled in a matter of first impression.

Judge W. Dennis Duggan (See Profile) in Albany County, who had increased the man's child support by $1,000 a month in a decision later reversed by an appellate court, said it would be unjust to deny the father credit for at least some of the overpayment.

Duggan held that an Appellate Division decision reinstating an original support order constitutes a "new order" within the meaning of the Family Court Act, and therefore excess payment credit is attainable. He also found that the Court of Appeals has carved an exception to the general prohibition against refunding or crediting excess child-support payments.

Duggan noted that if the father had underpaid child support because of an ultimately reversed court order he would have to make up the difference. The judge also observed that if the father had not agreed with the support magistrate, he would be owed credit for whatever excess payments he made between the time of the support magistrate's decision and the Family Court's reversal.

"The law cannot countenance a situation where the father is liable for up to $29,000 in excess child support when Family Court gets it wrong but he would get a credit for up to $29,000 when Family Court gets it right," Duggan wrote in Schettini v. Overbaugh, 33926.

In this case, Duggan had initially directed the father to pay $1,500 per month under a divorce judgment. The support magistrate later increased the sum to $2,500 monthly based on a change of circumstances, and Duggan affirmed. But the Appellate Division, Third Department, reversed earlier this year in Overbaugh v. Schettini, 103 AD3d 972.

Duggan opined that the Third Department's decision created a "new order" within the confines of §439 of the Family Court Act, which allows credit for payments made in excess of a new order. However, regardless of whether the appellate court's ruling was a "new" order, Duggan said the Court of Appeals in Spencer v. Spencer, 10 NY 3d 60 (2008), and in Johnson v. Chapin, 12 NY 3d 461 (2009), suggested that credits could be granted in a "proper" case.

Spencer dealt with a man subject to a Connecticut child-support order who subsequently moved to New York. In Connecticut, a parent's support obligation ends when the child turns 18, in contrast to New York's 21-year obligation.

The Court of Appeals held that the New York court could not modify the Connecticut order to comply with New York law, and further indicated that the father could seek credit for the excess support he paid while the case was navigating the New York courts.

Johnson involved a husband whose income turned out to be considerably less than the sum on which his maintenance and support were based. The Court of Appeals said the man was entitled to credit for the excess paid in equitable distribution, but not for the child support. Still, Duggan found that the high court had implicitly concluded that "in the right case, a credit could be granted" for overpaid child support.

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