Recitation, as required by CPLR § 2219(a), of the following papers numbered 1 to 12 read on this motion, noticed on 12/16/2010 and duly submitted on 02/24/2011, considered in the review of this motion seeking relief for: contempt for failure to comply with stipulation of settlement and judgment of divorce.

Upon the papers listed above, this Order to Show Cause is hereby decided in accordance with this Decision/Order.

The parties were divorced on July 30, 2007. Prior thereto, the parties executed a stipulation of settlement on February 16, 2007 and an addendum to the stipulation on October 16, 2007 regarding all ancillary matters, inter alia, custody, child support, equitable distribution, primary reasons for the instant motion and cross motion. The agreement was incorporated into the Judgment of Divorce but not merged.

Plaintiff brings this motion to punish the Defendant for her failure to comply with the terms of the 2007 Orders; to direct Defendant to produce the items designated to be given to Plaintiff in the stipulation of settlement plus interest; to direct entry of a money judgment in the amount of $2,854.62 plus interest; to modify the order of child support; to direct reimbursement of child support payments; to adjust the child support arrears of $11,800.00 and use it as an offset against future child support payments; to direct New York State Child Support Processing Center and Queens County Support Collection Unit to update their records to reflect full payment; and to direct Defendant to pay attorney fees and expenses incurred for this motion.

Defendant opposes the motion and cross moves for an order granting a money judgment in the amount of $13,178.00 against Plaintiff; and directing payment of attorney fees.

CHILD SUPPORT PAYMENT AND ARREARS

The judgment of divorce and stipulation of settlement states that Defendant shall have joint custody with residential custody to Defendant of the subject child who was then 15 years old. The parties further agreed that the applicable child support payment was $850.00 per month pursuant to CSSA guidelines. However, the parties agreed that in lieu of that monthly payment and a deviation from the guidelines, Plaintiff would pay an up front portion in the amount $38,500.00 to be applied as credit for his equitable distribution share from the marital premises, representing monthly payments of $550.00 from February 2007 through December 2012. In addition, beginning March 1, 2007 Plaintiff will pay monthly child support of the difference of $300.00 until the child's 21st birthday. The conditions of child support payments are as follows:

a.the child was attending college past his 21st birthday, the payment would be resort back to $850.00 per month; or

b.the child was not married; or

c.abated upon death of the child; or

d.the child obtained full time employment during school recess; or

e.the child was not married during this time period; or

f.the child was attending college as a full-time matriculated student.

The agreement further provided that the child support payments would be suspended as follows: [*3]

1.if the child joins the Armed Forces; or

2.if the child lives permanently away from the mother's residence except for camp and/or college.

It is undisputed that Plaintiff did not make any payments beginning March 2007. It is also undisputed that the child is not attending college. The parties dispute where the child is residing but do agree the child is not living with Defendant/mother. Plaintiff proffers that the child relocated to his residence in or about April 2010, and that the child no longer resides with Defendant after an alleged domestic dispute between the child and Defendant. Defendant counters and maintains that the child resides with the paternal grandmother and not directly with Plaintiff. Albeit, Defendant states that the change was caused by Plaintiff's involvement. Defendant does not dispute that the child no longer resides with her as of April 2010. However, there is an issue of fact raised regarding the change of residential custody of the child.

Under both versions, the child being with the paternal grandmother or with the Plaintiff, the stipulation of settlement provides that the child support payments shall be suspended on the two bases (1) non attendance in college full-time and (2) no residential custody. Therefore, the terms of the stipulation of settlement for termination of child support controls. The issue is to which parent shall child support be paid. The child's date of birth is 12/14/1991, or 19 years old. Notably, child support payments terminate on the child's 21st birthday.

The stipulation of settlement provided that the up front payment of $38,500 for child support from February 2010 through December 2012, or the child's 21st birthday, at $550.00 per month, the partial amount pursuant to CSSA guidelines. This payment was applied as a credit against the equitable distribution award. The agreement spelled out the conditions by which child support shall be applicable to the residential custodial parent. Whether the child support payments will be changed from Defendant is determined under what circumstances the child left Defendant's residence. However, it is clear that the change of child support payments, depending on the court's finding after a hearing, shall take effect upon the date of filing of this motion although the child left the Defendant's residence April 2010.

Based on the up front payment, Defendant received a benefit of child support payments from May 2010 through December 2012 constituting an excess "future" payment of $17,600.00 or 32 months at $550.00 per month which she was not entitled to receive (emphasis added). In addition, as per the stipulation of settlement, Plaintiff was required to pay the difference of $300.00, pursuant to CSSA guidelines, from March 2007 until the child's 21st birthday. Plaintiff failed to make his payments and owes child support payments from March 2007 through April 2010 or 38 months at $300.00 per month for a total of $11,400.00. The period of time from April 2010 to November 2010 is undetermined since the Court will set a hearing to make a determination of change of circumstances.

It is well settled law that there is strong public policy prohibiting recoupment for overpayments of child support. See, Johnson v Chapin, 12 NY3d 461; citing, (Baraby v Baraby, 250 AD2d 201, 205 [3d Dept.1998]; Rosenberg v Rosenberg, 42 AD2d 590 [2d Dept.1973]). Those lines of cases most often refer to pendente lite orders and/or retroactive credits. The instant case is distinguishable. In this case, the payment of child support was a prepayment prospectively to December 2012 and to the parent that has residential custody. See Petek v Petek, 239 AD2d 327 [2d Dept 1997]. Since the child no longer resides with Defendant, the prepayment is [*4]inapplicably and should revert back as a credit to the payor parent. See Taddonio v Wasserman-Taddonio, 51 AD3d 935 [2d Dept]. It is not contemplated in the law or pursuant to DRL §236 for Defendant to receive an unjust enrichment of prospective payments of child custody when the child is not residing with her and the child support technically should have been terminated at that time.However, the reasons of why the child left Defendant's residence is an issue of fact to be determined for change in circumstances. Further, there is an question of fact of whether the child is in Plaintiff's residential custody or with the paternal grandmother.Based on the documents, Plaintiff is entitled to recoup those prospective child support prepayments made through December 2012, the child's 21st birthday.

IT IS HEREBY ORDERED that all payments through New York State Child Support Processing Center and Queens County Support Collection Unit shall terminate upon the service of this Order with Notice of Entry.

IT IS HEREBY FURTHER ORDERED that the issue of child support payments shall be determined after a hearing set for November 18, 2011 at 9:30 in the forenoon to 1:00 in the afternoon at the courthouse located at 88-11 Sutphin Blvd, Part 51.

PERSONAL PROPERTY

Pursuant to CPLR § 213(1) provides the statute of limitations for enforcement of the stipulation of settlement is six years. Plaintiff seeks Defendant to return the personal property itemized in the stipulation of settlement of 2007, which he states that he was without financial means to enforce his rights under the agreement much earlier. This motion is deem timely for enforcement of the agreement. However, Defendant has agreed to provide the inventory of personal property to Plaintiff upon an agreed date and time.

IT IS HEREBY FURTHER ORDERED that Defendant shall place all of Plaintiff's personal inventory items, as per the stipulation of settlement, in a location and place that is secured on the premises for Plaintiff to pick up. Plaintiff shall notify Defendant in writing the date and time he is available to pick up the inventory items from the premises. Any inventory items that Plaintiff believes are lost, damage or stolen, Plaintiff shall seek his legal rights in a different legal action. All relief for money judgment and interest is denied without prejudice for a separate legal action.

EQUITABLE DISTRIBUTION FROM THE MARITAL PROPERTY SALE

Plaintiff has shown sufficient proof that Defendant is indebted to him in the amount of $2,354.62. Defendant has failed to show proof that the closing cost was agreed to be equally shared. Therefore, Plaintiff motion seeking the full amount of $2,354.62 is granted with interest from the date of filing of this motion.

IT IS HEREBY FURTHER ORDERED that Plaintiff is granted a money judgment for $2,854.62 with interest from November 15, 2010.

ATTORNEY FEES

The application by both parties for legal fees is reserved to be determined after the hearing.

IT IS HEREBY FURTHER ORDERED that any relief not specifically granted is deemed denied as per this Decision and Order. [*5]

Dated: April 29, 2011So Ordered

Queens, New York

__________________________

Pam Jackman Brown, JSC