| McKay v Groesbeck |
| 2014 NY Slip Op 03498 [117 AD3d 810] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| Courtney (Groesbeck) McKay,Respondent, v Thomas W. Groesbeck, Appellant. |
Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Randy J.Perlmutter of counsel), for appellant.
Masch, Coffey & Associates, LLP, New City, N.Y. (Julia Masch of counsel),for respondent.
In a matrimonial action in which the parties were divorced by judgment dated May30, 2007, the defendant appeals (1) from an order of the Supreme Court, RocklandCounty (Alfieri, Jr., J.), entered November 15, 2011, which awarded the plaintiff the sumof $28,500 for outstanding maintenance arrears that accrued from October 13, 2004, toFebruary 28, 2007, and the sum of $37,902 for outstanding child support arrears thataccrued from October 13, 2004, to February 28, 2007; and (2) as limited by his brief,from so much of an order of the same court dated October 24, 2012, as, in effect, uponreargument, adhered to the original determination in the order entered November 15,2011.
Ordered that the appeal from the order entered November 15, 2011, is dismissed, asthat order was superseded by the order dated October 24, 2012, made upon reargument;and it is further,
Ordered that the order dated October 24, 2012, is reversed insofar as appealed from,on the law and in the exercise of discretion, upon reargument, the order enteredNovember 15, 2011, is vacated, and the matter is remitted to the Supreme Court,Rockland County, to recalculate any amount of retroactive child support andmaintenance due, in accordance herewith; and it is further,
Ordered that one bill of costs is awarded to the defendant.
On a prior appeal, this Court modified stated portions of the parties' judgment ofdivorce dated May 30, 2007, to award child support and maintenance retroactive toOctober 13, 2004, the date the summons and notice requesting such relief was filed, andremitted the matter to the Supreme Court to calculate the amount of retroactive childsupport and maintenance due, less any amount of maintenance and child support alreadypaid (see Groesbeck vGroesbeck, 51 AD3d 722 [2008]). Upon remittitur, the Supreme Courtdetermined that the defendant was not entitled to a credit for voluntary payments whichwere not made pursuant to a court order, and directed the defendant to pay to the plaintiffthe sum of $28,500 for outstanding maintenance arrears that accrued from October 13,2004, to February 28, 2007, and the sum of $37,902 for outstanding child support arrearsthat accrued from October 13, 2004, to February 28, 2007. In an order dated October 24,2012, the Supreme Court, in effect, upon reargument, adhered to its originaldetermination in the order entered November 15, 2011.
A party's maintenance and child support obligations are retroactive to the date of theapplication therefor, and except as otherwise provided, any retroactive amount due shallbe paid, as the court directs, "taking into account any amount of temporary maintenance[or child support] which has been paid" (Domestic Relations Law § 236 [B][6] [a]; see Domestic Relations Law § 236 [B] [7] [a];Groesbeck v Groesbeck, 51 AD3d at 724; Verdrager v Verdrager, 230AD2d 786 [1996]). Generally, voluntary payments made by a parent for the benefit of hisor her children may not be credited against amounts due pursuant to a judgment ofdivorce (see Horne v Horne, 22 NY2d 219, 224 [1968]; LiGreci v LiGreci, 87 AD3d722, 724 [2011]; Matter ofFinell v Finell, 25 AD3d 703, 704 [2006]; Lefkow v Lefkow, 188 AD2d589 [1992]). Further, a party is not entitled to a credit for payments made to satisfy thatparty's own legal obligations (see Heiny v Heiny, 74 AD3d 1284, 1288 [2010]; Krantzv Krantz, 175 AD2d 865, 866 [1991]) that were not made pursuant to a pendente liteorder of support (see Stern v Stern, 273 AD2d 298, 299 [2000]; Crane vCrane, 264 AD2d 749, 752 [1999]). In this case, there was a pendente lite order fortemporary child support of $1,000 per month issued in 2006, but it does not appear fromthis record that any payments were made pursuant to that order.
However, a party is entitled to a credit for payments made to satisfy the otherspouse's legal obligations (seeGillings v Gillings, 56 AD3d 424, 425 [2008]; Teague v Teague, 281AD2d 473, 474 [2001]; West v West, 151 AD2d 475 [1989]). Here, thedefendant should have received a credit towards arrears for any payments he madetoward the plaintiff's car payments and insurance, and for one half of the payments hemade toward the mortgage and carrying charges on the marital home, as those paymentswere made to satisfy the plaintiff's legal obligations.
The parties' remaining contentions are without merit.
Since it is not possible to determine, on this record, the amount of the credit towardsarrears to which the defendant is entitled, the matter must be remitted to the SupremeCourt, Rockland County, for further proceedings to determine the credits to which thedefendant is entitled, and a new disposition of the motion thereafter. Rivera, J.P.,Leventhal, Hinds-Radix and Maltese, JJ., concur.