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SUPPORT MAGISTRATE SHOULD NOT HAVE AWARDED CHILD SUPPORT TO FATHER; MOTHER WAS ENTITLED TO ARREARS UNDER THE CIRCUMSTANCES OF THIS CASE (FOURTH DEPT).

The Fourth Department concluded the support magistrate should not have awarded father child support because mother and father shared custody equally and father had the greater income and assets. The Fourth Department determined, in this circumstance, mother should be awarded arrears based upon the child support she should not have been ordered to pay:

… [M]other that she is entitled to a credit against any arrears from the order for the amount of child support erroneously awarded to the father from April 2, 2015 until January 1, 2016, and we therefore remit the matter to Family Court to determine the amount of arrears and the credit to be applied thereto. Although there is a strong public policy against recoupment of child support overpayments … , we conclude that the requested credit is appropriate under the limited circumstances of this case. Here, the record establishes that the mother had significantly less income and received certain public benefits, while the father received substantial disability and pension benefits and had significant assets … . Moreover, granting the mother’s request “will not detract from [the father] fulfilling the needs of the child[ ] while [he is] in [the father’s] care” and, indeed, will relieve the mother of an erroneously-imposed financial obligation, thereby allowing her to use her funds to maintain a stable household for the child and meet his reasonable needs during visitation … . Matter of Rapp v Horbett, 2019 NY Slip Op 05447, Fourth Dept 7-5-19

 

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TRIAL COURT DID NOT, AS PROMISED, INSTRUCT THE JURY ON THE PURPOSES OF INTRODUCING... ALTHOUGH DEFENDANT MET THE CRITERIA FOR A PERSISTENT FELONY OFFENDER THE RESULTING...