Here is a common problem- the custodial parent obtains an award of child support in New York. The support award is high. The non-custodial parent objects, appeals the support award and wins; after the child support order is reduced, can the parent paying child support recover any portion of the overpayment of child support?
Historically, the public policy required New York courts to deny claims for restitution or to recoup overpayments of child support. Recently, one New York judge ruled that, under certain circumstances, the non-custodial parent could obtain a credit for payments made in excess of the support order.
The court recognized an anomaly; had the original support order been found to be too low and the final order was higher, the non-custodial parent would have been assessed arrears to from the date the modification petition was filed to the time the final order was entered, but the policy did not allow recovery of overpayments made pursuant to an order that was ultimately reduced. This is just not fair.
This policy, in fact, penalized a spouse, who in good faith, while appealing the child support order, complied with the order, even if the order was too high; this parent would be out of the pocket the money paid pursuant to an order later found to be in error. The policy, in effect, would reward a dead-beat non paying parent-who did not pay child support while attacking an improper high award. In the end, his arrears would probably be fixed upon the proper support order.
There were practical reasons for the policy that did not allow recoupment of over payment of child support; the policy presumed that the custodial parent already spent the child support for its intended purpose-for the children- and that requiring it do be paid back would harm the children.
The court in Schettini v. Overbaugh, was outraged that particular overpayment would result in an unjust $29,000 windfall for the custodial parent. Certainly, it opined, the court could a fashion credit against future support payments that would not harm the child.
While a proper result, this decision opens the floodgates to more litigation. Are there other situations where credits against future child support payments should be given?
- Should a credit be issued when, for instance, a father continued to pay for support for a child who died?
- What about payments made after the child became emancipated and self supporting?
- Would a high temporary child support order was based on fraudulent income information supplied by the custodial parent justify a credit?
Are credits now to be allowed on a case by case basis when it would be manifestly unfair to deny one?
These questions will certainly be answered in due course.