| Matter of Taddonio v Wasserman-Taddonio |
| 2008 NY Slip Op 04711 [51 AD3d 935] |
| May 20, 2008 |
| Appellate Division, Second Department |
| In the Matter of Keith William Taddonio,Appellant, v Julie Faith Wasserman-Taddonio, Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Suffolk County (Simeone, J.), dated July 18, 2007, which deniedhis objection to an order of the same court (Orlando, S.M.), dated May 16, 2007, in effect,denying his petition for a credit with respect to certain child support payments.
Ordered that the order dated July 18, 2007 is modified, on the law, by deleting the provisionthereof denying the father's objection to so much of the order dated May 16, 2007, as denied thatbranch of his petition which was for a credit for amounts he paid directly to the mother for thebenefit of the parties' son from March 2006 to November 2006, and substituting therefor aprovision sustaining that objection and modifying the order dated May 16, 2007, to grant thatbranch of the petition which was for a credit for amounts he paid directly to the mother for thebenefit of the parties' son from March 2006 to November 2006; as so modified, the order datedJuly 18, 2007 is affirmed, without costs or disbursements, and the matter is remitted to theFamily Court, Suffolk County, to determine the amount of the credit due to the father.
The parties entered into a separation agreement which was incorporated but not merged intoa judgment of divorce entered October 4, 2002. The child support provision contained in thejudgment obligated the father to make monthly child support payments in the sum of $1,300 forthe parties' two children. The separation agreement further provided that the children wouldbecome emancipated upon, inter alia, attaining the age of 21.
On March 29, 2006 the father filed a petition, inter alia, for a downward modification of hischild support obligation since, among other things, the parties' daughter turned 21 on March 13,2006. The father continued to make child support payments for both children directly to themother.[*2]
In an order dated October 24, 2006 the SupportMagistrate directed, inter alia, that the child support provision be amended to delete the paymentsfor the parties' daughter in view of her emancipation, and that, retroactive to March 13, 2006, thefather make monthly child support payments for the parties' son in the sum of $853.06 throughthe Support Collections Unit, effective November 30, 2006.
On November 29, 2006 the father filed a petition requesting that a credit be applied to hischild support account for the payments made directly to the mother from March 2006 toNovember 2006. The Support Magistrate, in effect, denied the petition. In an order dated July 18,2007 the Family Court denied the father's objection to the order of the Support Magistrate.
"There is strong public policy in this state, which the [Child Support Standards Act] did notalter, against restitution or recoupment of the overpayment of child support" (People ex rel. Breitstein v Aaronson, 3AD3d 588, 589 [2004], citing Baraby v Baraby, 250 AD2d 201 [1998]; seeMatter of Tompkins County Support Collection Unit v Chamberlain, 305 AD2d 813 [2003];Matter of Maksimyadis v Maksimyadis, 275 AD2d 459 [2000]). The Family Courtproperly declined to credit the father for the overpayments of child support made for the benefitof the parties' daughter.
However, the father is entitled to a credit in the amount of child support payments he madedirectly to the mother from March 2006 to November 2006 for the benefit of the parties' son,against the "arrears" fixed by the Support Collections Unit for the payments made for the supportof the parties' son during the same period of time.
Accordingly, we remit the matter to the Family Court, Suffolk County, to determine theamount of the credit due to the father. Fisher, J.P., Santucci, Balkin and Belen, JJ., concur.