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F.S. v. K.O.

New York Family Court, Albany

November 15, 2013

F.S., Petitioner,
v.
K.O., Respondent.

Michael P. Friedman, Esq., for petitioner.

Karen A. Rhoades, Esq., for respondent.

W. DENNIS DUGGAN, J.

Issue

The Support Magistrate increased the petitioner-father's child support obligation by $1,000 per month. This Court affirmed. [976 N.Y.S.2d 787] The Appellate Division reversed ( Overbaugh v. Schettini, 103 A.D.3d 972, 962 N.Y.S.2d 369, lv. denied 21 N.Y.3d 854, 2013 WL 1831650).[1] Should the father now receive a credit for the excess child support (which may amount to almost $29,000) paid pursuant to the order of the Support Magistrate when that order was affirmed by this Court but vacated by the Appellate Division?

Holding

The Court holds that the father should receive the credit allowed by FCA § 439(e) for excess child support paid from the date of filing of the mother's modification petition until the date of this Court's decision that affirmed the Magistrate's decision. The grounds for this ruling are that the reversal order of the Appellate Division created a " new order" of the Family Court within the meaning of the FCA § 439 and payments made in excess of a new order are entitled to be credited against future child support obligations.

The Court also holds that the father should receive a credit for the excess child support paid from the date of this Court's order that affirmed the Magistrate until the date of the Appellate Division order that reversed Family Court's order regardless of whether it can be characterized as a new order. This credit is based on the rulings of the Court of Appeals in Spencer v. Spencer, 10 N.Y.3d 60, 853 N.Y.S.2d 274, 882 N.E.2d 886 [2008] and Johnson v. Chapin, 12 N.Y.3d 461, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009] that held in a proper case, a credit should be granted. This is one of those proper cases because not granting a credit to the father would be manifestly unfair.

Procedural History

After the Appellate Division's reversal, the father filed a petition before the Support Magistrate seeking an order that [976 N.Y.S.2d 788] would compel the Support Collection Unit to credit his account for the amounts he paid above the original order that was reinstated by the Appellate Division. The Magistrate dismissed his petition and the father now objects.

Discussion

The practical result of the Appellate Division's decision was that the father was overcharged for his child support obligation due to the Magistrate's order that was affirmed by this Court. Whether he should be reimbursed for that overcharge is the subject of this decision. The financial aspects of this case can be summarized as follows (amounts are rounded):

Child support paid pursuant to the Magistrate's modification order, from the date of filing of the modification petition to the date of the Appellate Division's reversal. $61,800
Child Support owed pursuant to original judgment of divorce over that same ...

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