FORTGANG v. FORTGANG (2019)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's cross motion for a money judgment reimbursing him for overpaid child support is denied.

The parties were divorced by a judgment of divorce dated May 17, 2011, which incorporated, but did not merge, a stipulation of settlement dated February 14, 2011.  Pursuant to the stipulation, the parties agreed that the plaintiff would pay $2,600 per month in basic child support for the parties' two children.  The stipulation provided that the plaintiff's child support obligation would decrease when the older child became emancipated and would terminate when the younger child became emancipated.

In December 2013, the older child became emancipated under the terms of the stipulation.  Nonetheless, the plaintiff continued to pay child support in the full amount through an execution on his income.  In November 2015, the younger child became emancipated under the terms of the stipulation, but the plaintiff continued to pay child support for several months thereafter through the execution on his income.

On December 19, 2016, in response to the defendant's motion for leave to renew and reargue a prior motion, the plaintiff cross-moved, for the first time, to be reimbursed for child support overpayments.  The Supreme Court granted the plaintiff's cross motion, and awarded him a money judgment against the defendant in the amount of $30,422.32 for overpaid child support.  The defendant appeals.

“There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support” (Matter of McGovern v. McGovern, 148 A.D.3d 900, 902, 50 N.Y.S.3d 408 [internal quotation marks omitted];  see Johnson v. Chapin, 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66).  The rationale behind this policy is that child support payments are deemed to have been used to support the children, so “no funds exist from which one may recoup moneys so expended” (Matter of McGovern v. McGovern, 148 A.D.3d at 902, 50 N.Y.S.3d 408 [internal quotation marks omitted] ).  “[R]ecoupment of child support payments is only appropriate under ‘limited circumstances’ ” (id., quoting People ex rel. Breitstein v. Aaronson, 3 A.D.3d 588, 589, 771 N.Y.S.2d 159).

The plaintiff failed to demonstrate the existence of any circumstances which counter this state's strong public policy against reimbursement of child support overpayments (see People ex rel. Breitstein v. Aaronson, 3 A.D.3d at 589, 771 N.Y.S.2d 159).  The plaintiff could have requested a modification of his child support obligation in accordance with the stipulation, but failed to do so (see Matter of Brady v. White, 158 A.D.3d 748, 749–750, 753, 72 N.Y.S.3d 114;  Matter of Taddonio v. Wasserman–Taddonio, 51 A.D.3d 935, 935–936, 858 N.Y.S.2d 721).

Accordingly, the plaintiff failed to demonstrate his entitlement to reimbursement for overpaid child support, and his cross motion should have been denied.

BALKIN, J.P., CHAMBERS, ROMAN and HINDS–RADIX, JJ., concur.