On July 25, 2008, the attorney for the respondent filed "Notice of Objections." The transmittal letter indicated that the Objection was served upon the attorney for the petitioner. On August 4, 2008, the attorney for the petitioner filed a"Reply." An Affidavit of Service was filed indicating service of the Reply on the attorney for the respondent. The attorney for the respondent also filed a transcript of the applicable court appearance.

As background to the Objection, on December 12, 2006 the petitioner-mother filed a petition seeking modification/enforcement of the December 3, 2002 order of support for the parties' daughter A. R., date of birth [redacted]. The mother alleged that the respondent-father violated the terms of the parties' divorce decree in that he refused to provide her with tax records so that the child support obligation could be recalculated. The mother also alleged that the father had not paid his share of uncovered medical expenses.

On April 4, 2007, the father filed a cross-petition seeking to terminate the child support order based upon emancipation and/or constructive abandonment, to reimburse him for support payments made from May 2006 to date, to sanction the mother for frivolous legal action, and to award him attorney's fees and costs. The father also moved to dismiss the mother's petition.

On May 29, 2007, the Support Magistrate issued a Letter Decision on the motion to dismiss in which he ruled it was necessary to obtain a determination from a Family Court judge on whether A. was emancipated or had constructively abandoned her father prior to deciding the issues of the case.

After an extensive hearing, on October 15, 2007 this Court issued a decision in which it held that A. was not constructively emancipated from her father. This Court, however, did find that A. was emancipated as defined in the parties' Separation and Opting Out Agreement which was incorporated and not merged into their divorce decree. The Agreement stated that the child would be emancipated if she worked 30 or more hours per week. The evidence showed that A. did work slightly more than 30 hours per week (an average of 30.08 hours per week) during the [*2]period of May 1, 2006 though April 1, 2007. This Court also noted that A. became 21 years of age on July 24, 2007 and child support payments ceased. The matter was transferred back to the Support Magistrate for further proceedings.

On June 24, 2008, after a hearing ,with an extension of time for the attorneys to file additional trial summaries, the Support Magistrate issued a Letter Decision in which he found that the mother had not acted frivolously when she filed her modification/enforcement petition and denied the father's request for an award of attorney's fees and costs. On July 21, 2008, the Support Magistrate issued a decision in which he concluded that the father was not entitled to recoupment of the support monies that he paid to the mother during the period of A's emancipation. The Support Magistrate cited the public policy against refunds of child support monies already spent and his opinion that the child support monies were necessary for the care and support of A. even though she was deemed emancipated.

The attorney for the respondent objected to the determinations of the Support Magistrate, stating that the Support Magistrate erred in failing to refund support monies to the father and in failing to award counsel fees. The attorney argued that the mother was not entitled to receive child support for A. after the date of A's emancipation and that amounts for basic child support, health insurance premiums, and uncovered medical expenses should be refunded to the father. The attorney also argued that the mother's course of conduct in filing her support petition was designed to maliciously injure the father and that an award of counsel fees and costs should be granted.

The attorney for the petitioner responded that the child support monies should not be refunded to the father because there was no showing that the child was self-supporting during the applicable period and there was no showing that the mother engaged in a fraudulent course of conduct by concealing A's working hours from the father. The attorney also stated that no counsel fees should be awarded since the mother's petition was filed in good faith and contained legitimate questions of fact.

The Support Magistrate made no error of law in concluding that the father is not entitled to a refund of the child support monies he paid to the mother for A. during the period of time in which she was deemed emancipated by the terms of the parties' Separation and Opting Out Agreement. There is a strong public policy in New York State against restitution or recoupment of support overpayments, and this policy was not altered by the enactment of the Child Support Standards Act. Baraby v. Baraby, 250 AD2d 201; Taddonio v. Taddonio, 51 AD3d 935. In part, this is because the "elementary social obligation of a parent to support his own offspring" arises out of the policy of the law and not out of contract. Ostrow v. Ostrow, 33 AD2d 1006.

There are certain instances in which a refund of child support is appropriate, e.g., when there was a mathematical error in the calculation of the amount of support (Colicci v. Ruhm, 20 AD3d 891); when the support amount in the final order of support is less than in the temporary award (Maksimyadis v. Maksimyadis, 275 AD2d 459); or when it is shown that the subject child is not the biological child of the payor and there is no finding of estoppel (Thomas v. Commissioner of Social Services, 287 AD2d 642).

However, none of these exceptions apply in the instant proceeding. Indeed, the proofs showed that A. was not self-supporting during the period in question. She resided with her mother who provided her with shelter, food, and health insurance. She was not employed in a [*3]full-time capacity. There was no evidence that the child support monies paid to the mother were used in any way other than to support A. The Court is also aware that when a noncustodial parent ceases to pay child support after a child becomes 21 years of age, the parent with whom that young adult continues to resides often continues to provide financial support. In the instant proceeding, A. reached her 21st birthday during the pendency of the proceeding and the father's child support payments ceased at that time. According to the information provided to the Court, A. continued to depend upon her mother for financial support even after reaching her majority.

With respect to the issue of counsel fees, the Support Magistrate made no error of law or abuse of discretion in denying the father's request for counsel fees and costs. A frivolous petition is defined as one completely without merit or one that is undertaken to harass the other party. 22 NYCRR 130-1.1 There was no indication that the mother's petition for modification and violation was brought in bad faith as there were legitimate questions of fact involving the support obligation and whether it should be modified and whether there was a violation of the existing order.

Accordingly, the respondent's Objection is hereby denied.