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F.S. v. K.O.

Family Court of New York, Albany County

November 15, 2013, Decided



 [*467]  [**786]  W. Dennis Duggan, J.


The Support Magistrate increased the petitioner father's child support obligation by $1,000 per month. This court affirmed. [**787]  The Appellate Division reversed (Matter of Overbaugh v Schettini, 103 AD3d 972, 962 NYS2d 369 [2013], lv denied 21 NY3d 854). 1 Should the father now receive a credit for the excess child [****2]  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?


The court holds that the father should receive the credit allowed by Family Court Act § 439 (e) for excess child support paid from the date of filing of the mother's modification petition  [*468]  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 Family Court Act § 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  [***4] 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 Matter of Spencer v Spencer (10 NY3d 60, 882 NE2d 886, 853 NYS2d 274 [2008]) and Johnson v Chapin (12 NY3d 461, 909 NE2d 66, 881 NYS2d 373 [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 

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42 Misc. 3d 466 *; 976 N.Y.S.2d 786 **; 2013 N.Y. Misc. LEXIS 5597 ***; 2013 NY Slip Op 23411 ****; 2013 WL 6389194

 [****1]  F.S., Petitioner, v K.O., Respondent.

Prior History: Matter of Overbaugh v Schettini, 103 AD3d 972, 962 NYS2d 369, 2013 N.Y. App. Div. LEXIS 991 (N.Y. App. Div. 3d Dep't, 2013)


recoupment, restitution, temporary, modification, reinstating, retroactive, payor

Family Law, Support Obligations, Computation of Child Support, Guidelines, Child Support, Procedures, Types, Retroactive Support, Civil Procedure, Stays of Judgments, Appellate Stays, General Overview, Temporary Support, Governments, Legislation, Interpretation