[*2]Appeal by plaintiff from a small claims judgment of the District Court, Suffolk County (P. Barton, J.), entered March 27, 2002, in favor of defendant dismissing the action.

Judgment affirmed without costs.

In this action to recover an overpayment of child support, it is our opinion that substantial justice was done between the parties according to the rules and principles of substantive law (see UDCA 1807). In reaching this result, we note that it was uncontested that the funds were spent on plaintiff's children. Moreover, there is a strong public policy against restitution and recoupment of support overpayments (see Matter of Niewiadomski v Dower, 286 AD2d 948).

Winick, J.P. and Rudolph, J., concur.

Lifson, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: WINICK, J.P., LIFSON and RUDOLPH, JJ.
[*3]ALVIN HORNE,
Appellant, -
against -
BEVERLEY PEARMAN,
Respondent.

Lifson, J., dissents and votes to reverse the judgment of the court below and award judgment in favor of plaintiff in the amount sought in the complaint in the following memorandum:

The facts presented here are relatively simple. The plaintiff seeks a refund of overpayments in child support made through the Child Support Enforcement Bureau. The circumstances of the overpayment were admitted by a representative of that agency who testified below as to the support collection unit file. Thus, for the purposes of this appeal, the fact that plaintiff had excessive payments charged to the account maintained by the Child Support Enforcement Bureau is conclusive and should be determinative of the result of the matter at issue.
[*4]The remaining facts, to the extent they are pertinent, appear as follows. Pursuant to an order of the Family Court dated September 13, 1996, the plaintiff's wages were garnished in the sum of $1,506 for child support for two children. In October of 1998, the order of September, 1996, was modified downward. In the intervening two years, an overpayment of $1,651.50 was admittedly collected and paid to defendant. On October 14, 1999, a further order of the Family Court was issued, which was entered on October 24, 1999, and which vacated the order of September 13, 1996, retroactive to September of 1999. An additional overpayment was admittedly forwarded to the defendant. The plaintiff requested an audit which took a year and a half to complete. Ultimately, the audit indicated that the defendant received collected overpayments in the total sum of $2,893.50 (the very sum for which relief was sought by the instant action brought in the District Court). Nonetheless, the District Court dismissed the claim stating that substantial justice was done between the parties.

Unlike those instances where a party takes an inexplicably long time to recoup an excess payment (see e.g. Golden v Golden, NYLJ, Mar. 3, 1997, at 32, col 3 [Sup Ct, Suffolk County, Lifson, J.]), in the present case, the plaintiff moved expeditiously to set the record straight. He applied twice to the Family Court and twice he obtained a downward modification. In furtherance of his contentions, he sought an audit of the collection unit. The fact that the collection unit took eighteen months to complete its audit cannot, in good conscience, be attributable to the plaintiff. Of far greater importance, whereas the payments in Golden were executed pursuant to a lawful order of a court, in [*5]the instant case, the plaintiff's property was confiscated in disregard of two lawful orders of the Family Court.

The rule against permitting recoupment of overpayment in alimony is not absolute (see Stimmel v Stimmel, 163 AD2d 381; Jacobs v Patterson, 143 AD2d 397). Those exceptions deal with instances of deception or breach of antecedent obligations of the party receiving the overpayments. Surely, a similar result is required where a lawful order is disregarded. Additionally, I note that, in the present case, the payments in question were never intended for the recipient, but were intended for the infant issue of the marriage. Although the record is far from clear, it appears that the intended beneficiaries, to wit, the children of this marriage, were either living with the plaintiff or otherwise sooner emancipated. Thus, the designation of an overpayment is suspect since the defendant was not entitled to any payment for her own use and the failure to permit recoupment would allow the defendant to be unjustly enriched.

Lastly, I emphatically reject putting a judicial imprimatur on any inference that substantial justice was achieved here. On the contrary, a gross injustice is about to be effected on the plaintiff. Despite obtaining two court orders reducing his child support obligation and being vindicated by the audit of the support collection unit, the coercive powers of the state were utilized to unlawfully seize his property to which the defendant had no claim either in law or in equity. To allow such a circumstance to continue undermines the judicial. admonitions routinely issued to dissuade obligor spouses from utilizing self-help mechanisms to avoid. their support obligations. I respectfully dissent.
[*6]
Decision Date: September 03, 2003