Is Refund of Overpayment of CS Possible?

[katiedee2006]

Hello,

Our state is NY.

BM & DH had joint legal custody of SD; BM was CP & DH paid CS.  Mid-Aug. 02, BM announces she is moving to AZ.  9/02 SD moves in with DH's sister & b-i-l so she does not have to change schools for her sr. year of HS (& we live 40 minutes away) and is with us all weekends, breaks, etc.  SD moves in with us f/t the weekend after she graduates.

DH files for ending his payment of CS, for receipt of CS from BM & return of all CS paid since 9/02.  Case heard end of 1/03 & his CS payments stop but he is told he needs to file a new petition for support & the 5 months of CS that BM rec'd after she moved will be addressed then.  He files, case is transferred to different county & heard 9/03 by a different hearing examiner.  Both parties object to decision, decision is thrown out & new hearing was 6/04.

6/04 hearing examiner tells attys. to work out a settlement.  In the interest of moving on, they settle on CS from BM & arrearage amount retro to date SD moves in w/us full-time as hearing examiner told our atty DH was not entitled to CS while SD lived with his sister.  Examiner does not even listen that DH paid his sister equivalent of support during this time.  5 months of overpaid child support is not addressed one way or the other.

5 months of CS paid from DH to BM from 9/02-1/03 as follows:
- $1796 paid to BM
- $  208 in CS checks signed over from BM to sister in law
- $  600 check from BM's personal account to sister in law
- $  988 retained by BM

Current violation petition for non-payment of unreimbursed medical & CS pending against BM - we are awaiting the court date.  DH is pro se as we can't afford more atty's fees.

1) Is there any hope of recovering the $988 the BM simply kept for herself?

2) If so, any idea what type of petition would be filed?

3) Even though the 5 months of CS is not specifically listed in the pending violation petition, as it's not really relevant to the violation, should DH try to mention it at violation hearing?

Thank you.

[socrateaser]

If the settlement agreement fails to address the five months of CS, and DH never raised the issue of the 5 months in any other legal action, i.e., never asked for it, then you may have a case.

If DH raised the issue, and the Examiner refused to hear the issue, then you should have appealed the decision, which would have become final in 10-30 days.

So, now it's probably too late.

Re question #3, I wouldn't raise it -- pro se litigants who want to vent about irrelevant issues cause judges to fall asleep and dismiss the action.

[katiedee2006]

Thank you for your response.

I believe the first scenario applies to us.  The 5 mos. CS was never discussed in conjunction w/the settlement agreement of 6/04 (our atty. didn't think we had a chance w/this one & we followed her advice, but now think that may have been an error).

The Examiner at our 1/03 court date (DH was pro se there) verbally assured DH he would address it at the next hearing, but this was off the record as we were walking out.  We never went before that Examiner again.

1) How would you suggest we proceed in attempting to recover this money?  Ideally we'd like to have it added to BM's ever increasing arrears.

Thanks again!!


>If the settlement agreement fails to address the five months
>of CS, and DH never raised the issue of the 5 months in any
>other legal action, i.e., never asked for it, then you may
>have a case.

>If DH raised the issue, and the Examiner refused to hear the
>issue, then you should have appealed the decision, which would
>have become final in 10-30 days.
>
>So, now it's probably too late.
>
>Re question #3, I wouldn't raise it -- pro se litigants who
>want to vent about irrelevant issues cause judges to fall
>asleep and dismiss the action.

[socrateaser]

>1) How would you suggest we proceed in attempting to recover
>this money?  Ideally we'd like to have it added to BM's ever
>increasing arrears.

The first question is whether the law of the jurisdiction permits recovery of valid support payments when the obligee parent is not carrying out her legal duty to exercise custody and control over the child. I don't know the answer to this question, and I don't have time to research it. In some jurisdictions, state law forbids crediting the obligor parent back, and that would foreclose your case. In others, you can claim that the other parent was unjustly enriched by the support payments, and therefore that you should be reimbursed for them.

If you want to move for reimbursement, you will need to find out if there is any statutory or case law impediment, or, to the opposite, law that favors your position.

It's a tough question to research without a local lawyer.