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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Angelo COLICCI, Petitioner-Respondent, v. Pamela Pagoda RUHM, Respondent-Appellant.

Decided: July 01, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, PINE, AND LAWTON, JJ. Shkane and Shaheen Law Offices, New Hartford (Kristen T. Shaheen of Counsel), for Respondent-Appellant. Abbie Goldbas, Utica, for Petitioner-Respondent. Carl V. Graziadei, Law Guardian, Whitesboro, for Brittany P.

 Family Court properly granted that part of the petition seeking to suspend petitioner father's child support obligation on the ground that respondent mother had “frustrated” visitation between petitioner and the parties' daughter.   Pursuant to Family Court Act § 413(1)(a), a parent has a statutory duty to support a child until the age of 21.   Here, however, petitioner established that respondent, the custodial parent, “has unjustifiably frustrated the noncustodial parent's right of reasonable access, [and thus] child support payments may be suspended” (Matter of Smith v. Bombard, 294 A.D.2d 673, 675, 741 N.Y.S.2d 336, lv. denied 98 N.Y.2d 609, 746 N.Y.S.2d 693, 774 N.E.2d 758;  see Matter of Kershaw v. Kershaw, 268 A.D.2d 829, 830, 701 N.Y.S.2d 739;  cf. Weinreich v. Weinreich, 184 A.D.2d 505, 506, 585 N.Y.S.2d 769).

 We further conclude, however, that the court erred in suspending petitioner's child support payments retroactively, and thus we modify the order accordingly.  “There is a ‘strong public policy against restitution or recoupment of support overpayments' ” (Matter of Niewiadomski v. Dower, 286 A.D.2d 948, 948, 731 N.Y.S.2d 420, quoting Baraby v. Baraby, 250 A.D.2d 201, 205, 681 N.Y.S.2d 826).   Although recoupment may be permissible under limited circumstances, e.g., where there was a mathematical error in the calculation of the amount of support (see People ex rel. Breitstein v. Aaronson, 3 A.D.3d 588, 589, 771 N.Y.S.2d 159), here there is no such error.

We have reviewed respondent's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by suspending child support payments effective March 12, 2004, and as modified the order is affirmed without costs.


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