Moss v Davis

[*1] Moss v Davis 2006 NY Slip Op 50324(U) [11 Misc 3d 1060(A)] Decided on March 8, 2006 Rochester City Court Morse, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2006
Rochester City Court

Richard A. Moss, Plaintiff,

against

Pamela Davis, Defendant.



Richard A. Moss, Plaintiff, against Pamela Davis, W FKA Pamela Moss, Defendant.

Richard A. Moss, Plaintiff,

against

Pamela Davis, Defendant.





04- SC-11087

Thomas Rainbow Morse, J.

These actions involve the financial fallout from the parties' divorce over five years ago. During the course of a small claims de novo proceeding in one case, it became clear that there were other matters between the parties pending arbitration hearings in Rochester City Court. In the interests of judicial economy and in the hopes of resolving the last remaining issues between the [*2]parties, the court requested that all pending matters be transferred to this court and consolidated.[FN1] The court has heard testimony on several days and has given the parties a full opportunity to provide arguments to the court supporting their positions on the issues.[FN2] Fact finders in both Family Court and the small claims arbitration from which this de novo action sprung, found that the plaintiff overpaid child support to the defendant. On the record in this proceeding, this court similarly finds that the defendant received $ 4, 875 as purported child support to which she was not entitled as the non-custodial parent from a sequestration of the plaintiff's IRA. That finding, however, does not end the inquiry. The court must then decide whether the plaintiff can recoup any or all of his proven loss. In addition, even if he is entitled to restitution, it is questionable whether he can or should be able to do so in a City Court small claims action since these matters are clearly incidental to a matrimonial action.[FN3] For the reasons which follow, however, this court finds that substantial justice between the parties in accordance with New York substantive law would be served by this court deciding at least some of the questions raised in these cases.

Among the issues resolved by the divorce decree were provisions relating to child support and the income tax implications for both parties. In the first action before this court, 2004 - SC - 11087, the Plaintiff, Mr. Moss, has brought suit for $5,000 representing money allegedly due from overpayment of child support during the period from July, 2003, through April, 2004.[FN4] Over the objection of the plaintiff, the defendant was permitted to file a counterclaim for $ 557.72 alleging entitlement to reimbursement for medical and other extra-curricular expenses relating to their sons for an even longer period.[FN5] In the second action, 2005 - SC - 2086, Mr. Moss is seeking compensation for: interest on overpayment of child support from August 2003, through April, 2004; interest on the overpayment of child support since the filing of 2004 - SC - 11087; and interest on retro-active child support due in the amount of $1,912.50. The court is also being asked to consider [*3]credit card debt associated with this interest. In the last case, 2005 - SC - 6212, Mr. Moss has brought suit regarding dependent child income tax deductions for the 2004 tax year.

For the reasons which follow, in the first action this court denies the defendant's counterclaim and awards $ 2,437.50 to the plaintiff ; in the second cause of action the plaintiff's remaining requests are denied; and the third action is dismissed without prejudice to its being re-filed in Supreme or Family court.

Restitution for Over-Payment of Child Support

Our courts have long recognized that New York has a "strong public policy against restitution or recoupment of support overpayments." [FN6] In fact, as one court has noted, the Child Support Standards Act (CSSA) "contains no provision authorizing recoupment for overpayments of child support."[FN7] While this court is, with some trepidation, exercising its discretion to consider these matters rather than send the parties to yet another court, for the sake of future litigants this court respectfully suggests that the CSSA be amended to specifically address the issue of restitution and/or recoupment for overpaid child support just as it presently covers the issue of failure to pay such support.

The first New York case on the issue of restitution for overpayment of financial obligations arising out of a divorce decree was decided in1920.[FN8] The foundation for that opinion is a United States Supreme Court case appealed from New York sixteen years earlier which held that, due to the unique nature of alimony and child support, discharge of all debts in bankruptcy did not apply to such commitments.[FN9] In 1906, Mr. Justice Day writing for a unanimous Supreme Court in the Wetmore case noted that a post-marital financial obligation such as child support is not "a debt which has been put in the form of a judgment, but is rather a legal means of enforcing the obligation of the husband and father to support and maintain his...children. He owes this duty, not because of any contractual obligation...but because of the policy of the law which imposes the obligation upon the husband."[FN10] This obligation has roots in our common law which dictated that "a father is bound to [*4]support his legitimate children, and the obligation continues during their minority."[FN11] While our society's perceptions of the rights and responsibilities of women have certainly evolved from the more paternalistic view implicit in those cases which echoed community beliefs prevalent a hundred years ago, the non-contractual definition of child support as a parent's moral obligation is as true today as it was then. The only real change is that it has become gender neutral.[FN12]

Most of the cases denying restitution or recoupment for overpayment involve amounts set in temporary orders based on limited information wherein the amounts were adjusted after a full review of each parent's financial situation. This judicial reluctance to order restitution for money already expended for child support has been upheld even on remand after an appellate ruling which recognized there had been overpayment of child support.[FN13] Several corollaries, however, have been carved out of the general rule. For instance, restitution or recoupment has been found to be appropriate where a mathematical error has been made,[FN14] or inappropriate where the party seeking restitution has failed to pay child support.[FN15] In addition, it has been held that when the final order increases the amount of child support, a court need not order a retroactive increase covering the [*5]period during which the temporary order was in place.[FN16]

While this court has found that the defendant received funds to which she was not entitled as the non-custodial parent, the court credits the testimony of the parties that during the period in question their sons unsuccessfully petitioned for assigned counsel to represent the sons' interests in court. It is also clear to the court that if the funds which were received by the defendant were applied in the manner for which they were intended that her sons may not have been put in a position to have made such an application. The actions their sons felt compelled to take speak volumes about their parents fulfillment of their responsibility to "assure that children will realize the maximum benefit of their parents' resources and continue, as near as possible, their preseparation standard of living in each household."[FN17] In recognition of that joint parental responsibility, the court finds it substantially just and appropriate under the facts of this case to allow the plaintiff to recover from the defendant one-half of the over-paid child support.

The Request for Interest

While this court has found under the unique circumstances of this case an award to the plaintiff of a portion of the child support overpaid pursuant to the final Supreme Court order is substantially just, the same cannot be said for the imposition of money damages based on interest income lost or credit card interest assessed. While such losses and expenses may be reflected on a spread sheet, the value of a party's contribution to a marriage which produces children cannot. Marriages are characterized by hopes and disappointments. They are replete with joys and sorrows. Even in those marriages which last "until death do us part," the efforts of the parents do not necessarily result a balanced equation. Whatever sacrifices couples may be required to make to preserve this mutual life, should be made generously remembering that it is often more important to be caring than to be right. If child support obligations survive a marriage's dissolution then such potentially unequal sacrifices continue as well.

The right thing to do in these cases is to end the battle, to reconcile the balance sheet and accept the inevitable emotional and financial losses which attend a failed marriage. In the court's view, substantial justice has been served by the apportionment of the principal amount owing without the award of interest as long as the payment ordered by this court is made as directed before entry of a judgment.

The 2004 Tax Returns

In the remaining cause of action, the plaintiff has sued for a money judgment regarding the defendant's alleged improper use of a dependent child tax deduction on her 2004 tax return. Since the final order issued in the divorce contained specific language regarding availability of such deductions for specific years, any deviation from this plan should be raised in Supreme or Family Court. In order for this court to rule on this issue, it would necessarily need to find that a party had [*6]wilfully disregarded a Supreme Court order. Such proceedings are clearly outside this court's statutory mandate.[FN18]

City Court Jurisdiction to Hear These Cases

Our state constitution delineates the jurisdiction of each of our courts. The trial court with the greatest scope of authority is the Supreme Court which has "general original jurisdiction in law and equity and the appellate jurisdiction herein provided."[FN19] While some of its powers are exclusive, it shares concurrent authority to hear matters legislatively earmarked for other courts of more limited jurisdiction. It is the only New York court granted concurrent jurisdiction automatically when the legislature creates new "classes of actions and proceedings."[FN20] Most importantly for these cases, it is the only New York court with the power to grant a divorce.[FN21] A Supreme Court Justice may retain jurisdiction over child support issues following dissolution of a marriage or can allow the parties to go to Family Court for modifications of those portions of a final divorce decree.[FN22]

Local courts, such as Rochester City Court, have no constitutional or statutory authority regarding original child support orders or modification of existing child support orders. As it affects the issues raised in these cases, the New York State Constitution limits the jurisdiction of the Rochester City Court to "actions and proceedings for the recovery of money."[FN23] While it has general civil jurisdiction involving cases involving lawsuits for $15,000 or less, each of these matters was brought as a personal small claim.

Small claims actions constitute more informal proceedings wherein the court proceeds "in such a manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence."[FN24] However, the "Small Claims Part has no equitable powers and cannot grant equitable relief." [FN25] Importantly, while Supreme Court rules may apply in small claims "so far as the same can be made applicable and are not in conflict with the provisions of [the UCCA]; in case of conflict, the Provisions of [the UCCA]shall control." [FN26]

Since the City Court is a creature of statute and a court of limited jurisdiction, the parties [*7]cannot confer on the court jurisdiction which the legislature has deemed outside its purview. Because this case involves an action for a money judgment only, since our statutes do not specifically preclude such cases being heard in small claims and as the UCCA provides that small claims procedures trump Supreme Court rules when there is a conflict, this court has decided a number of issues brought before it. It may well be, however, that this court lacks jurisdiction to consider any actions arising out of a divorce decree, including lawsuits relating to child support issues.[FN27] Absent specific statutory or appellate authority, this court has addressed the matters arguably within its jurisdiction. It is respectfully suggested, however, that the legislature move swiftly to amend the Domestic Rrelations Law, the Family Court Act and the various local court acts to make it clear that actions for money damages arising from a matrimonial action may be brought, if at all, only in Supreme or Family Court.

Conclusion

This latest chapter in the tortured legal history of this couple's divorce, and its aftermath, provides a compelling argument favoring continued retention of divorce cases by the Supreme Court Justice who issued the decree. Since that final order was entered, these parties have appeared before several judges and hearing officers in the Family and City Courts regarding issues relating to support. By having "one family - one judge" in divorce cases, familiarity with the parties and the issues would form the bedrock of the court's decisions.[FN28] Such institutional memory would provide for consistency and give a measure of predictability as former spouses and their children sort through the painful aftermath of a failed marriage. Since that did not occur in this case, each successive hearing officer and judge has been required to some extent to "re-invent the wheel." [*8]

Perhaps the most anguishing aspect of this case involved this former couple's two sons who at one point apparently felt so overwhelmed by the process that they petitioned the courts for assistance. The frustration they no doubt felt is succinctly captured by the Kikuyu proverb which reminds all those involved in the cases between these two parties that "when the elephants fight..... it's the grass that gets trampled."

Accordingly, consistent with the court's responsibility under UCCA § 1804 "to do substantial justice between the parties according to the rules of substantive law"[FN29] and consonant with its authority pursuant to UCCA § 1805(a) to "condition the entry of such judgment upon such terms as the court shall deem proper", it is hereby

HELD that with regard to 2004 - SC - 11087 the plaintiff is entitled to a judgment for $2,437.50. And it is further

HELD that with regard to 2004 - SC - 11087 the court finds no cause of action on the defendant's counterclaim. And it is further

HELD that with regard to 2005 - SC - 2086 the court finds no cause of action on the plaintiff's remaining claims. And it is further

HELD that with regard to 2005 - SC - 6212 the Rochester City Court is the improper forum within which to bring this action and its attendant counter-claim .Therefore, it is

ORDERED that with regard to 2004 - SC - 11087 the Plaintiff is entitled to a judgment for $ 2,437.50. And it is further

ORDERED that this court's judgment order is stayed until May 1, 2006, to allow the defendant to pay the amount ordered without a judgment being entered. And it is further

ORDERED that if payment is not made by May 1, 2006, the judgment shall be entered in favor of the plaintiff, together with statutory interest computed from May 1, 2004, without further appearance before the court after receipt of plaintiff's written request for entry of a judgment accompanied by a notarized affidavit indicating that no appeal of this order has been taken by either party and that payment was not made by the defendant as ordered. And it is further

ORDERED that the defendant's counter claim in 2004 - SC - 10087 is dismissed. And it is further

ORDERED that the plaintiffs remaining causes of action in 2005 - SC - 2086 are dismissed. And it is further

ORDERED that both the claim and counter-claim in 2005 - SC - 6212 are dismissed without prejudice to their being raised in proceedings in either Supreme or Family Court.[FN30]

The foregoing constitutes the decision and order of the court.

ENTER, [*9]

Dated:March 8, 2006_______________________________________

Rochester, New YorkHon. Thomas Rainbow Morse, JCC

cc: Richard A. Moss

Pamela Davis Footnotes

Footnote 1:In addition to by-passing the arbitration process in those cases, the court waived the filing fees.

Footnote 2:In the last submission by the parties in these cases, received by the court on November 3, 2005, the plaintiff notified the court that he was withdrawing his request for interest on retroactive child support as requested in 2005 SC 2086.

Footnote 3:A tangential issue which is presented by that question is the extent to which any decision of this court if later found to be erroneous would have res judicata consequences. UCCA § 1808.

Footnote 4:This allegation of overpayment is supported by a Monroe County Family Court decision dated April 13, 2004. In that case, the judge suggested that claims for restitution for overpayment of child support in direct pay cases could not be heard in that court. Although the plaintiff originally filed a notice of appeal in that case, it was withdrawn in August of that year. While the record is not entirely clear on this point, it appears that the defendant at one time had considered appealing the family court order and the original small claims hearing was adjourned to give her the opportunity to do so. Apparently no appeal was perfected by the defendant and this matter was then scheduled for a small claims hearing.

Footnote 5:The defendant sought compensation for the period February 20, 2002 through June 9, 2004.

Footnote 6:Baraby v Baraby, 250 AD2d 201, 205( 3rd Dept., 1998). The more modern cases have arisen primarily in the area of temporary support payments. See also Foxx v Foxx, 114 AD2d 605, 607)(3rd Dept., 1985). Rodgers v Rodgers, 98 AD2d 386, 390(2nd Dept., 1983), appeal dismissed 62 NY2d 646; Grossman v Ostrow, 33 AD2d 1006( 1st Dept., 1970).

Footnote 7:Baraby v Baraby, 250 AD2d 201, 205( 3rd Dept., 1998)

Footnote 8:Avarett v. Avarett, 110 Misc. 584 (Supreme Court, 1920) aff'd 191 AD 948 (1st Dept., 1920).

Footnote 9:Wetmore v. Markoe, 196 US 68 (1904)(alimony). See also Dunbar v. Dunbar, 190 US 340 (1902) (child support). This common law ruled was later codified and is presently reflected in 11 USCA § 523 (a)(5) which now statutorily exempts from discharge in bankruptcy monies owed due to a "domestic support obligation."

Footnote 10:Wetmore v. Markoe, 196 US at 174.

Footnote 11:Dunbar v. Dunbar, 190 US at 351. The Supreme Court went on to note with approval the opinion of an Illinois Federal District Court Judge who observed that there was a "higher rule, which casts upon a parent the care and maintenance of his offspring. The welfare of the state, as also every principle of law,-statutory, natural, and divine,-demand that, so long as he has any substance at all, he shall apply it to the maintenance of his children." Id. at 352(citation omitted).

Footnote 12:The enactment of the Child Support Standards Act in 1989, embodies a societal determination that neither parent's financial responsibility to any of his or her children is terminated by divorce. In fact, its provisions clearly favor maintenance of a child's standard of living over that of his or her parents who have chosen to now live separate and apart. See NY Domestic Relations Law § 240 and NY Family Court Act § 413.

Footnote 13:Rodgers v. Rodgers, 98 AD2d 386, 390 (2nd Dept. ,1983); Rosenberg v Rosenberg, 42 AD2d 590(2ND Dept., 1973); Grossman v Ostrow, 33 AD2d 1006( 1st Dept., 1970).

Footnote 14:Colicci v. Ruhm, 20 AD2d 891(4th Dept.,2005); See also Niewiadomski v. Dower, 286 AD2d 948 (4th Dept.,2001) and People ex rel. Breitstein v. Aaronson, 3 AD3d 588, 589 ( 2nd Dept., 2004).

Footnote 15:Rodgers v. Rodgers, 98 AD2d 386, 390 (2nd Dept. ,1983); Brant v. Brant, 10 AD2d 567(1st Dept., 1960) These cases follow the general rule that "[w]here one who seeks the favor of the court has willfully flouted its orders, courts will be loath to exercise their discretion to grant such an applicant affirmative relief." Wolf v. Wolf, 50 AD2d 740(1st Dept., 1975)(citations omitted). Accordingly, since the court has that the defendant herein received direct payments to which she was not entitled, the court declines to grant her the affirmative relief she seeks in her counterclaim.

Footnote 16:The Third Department on remand from the Court of Appeals, held that "where a final order of support retroactively sets a higher rate than that paid during the pendency of the proceeding, thereby creating an immediate arrearage, credit should be given regarding such arrearage." Matter of Tompkins County Support Unit v. Chamberlain, 305 AD2d 813, 814 (3rd Dept., 2003)(Citations, internal quotations and punctuation omitted).

Footnote 17:Baraby v. Baraby, 250 AD2d 201, 204(3rd Dept.,1998).

Footnote 18:See NY Domestic Relations Law §§ 245, 246, 248, and 249.

Footnote 19:NY Constitution Article 6, § 7(a).

Footnote 20:NY Constitution Article 6, § 7(b).

Footnote 21:NY Domestic Relations Law §§ 249, 252.

Footnote 22:NY Domestic Relations Law §251

Footnote 23:NY Constitution Article 6, §§ 17(a), 16 (d) and 15(b).

Footnote 24:Uniform City Court Act § 1804.

Footnote 25:Cucinotta v. Hanulak, 231 AD2d 904, 905(4th Dept., 1996).

Footnote 26:Uniform City Court Act § 1804.

Footnote 27:Unfortunately, absent statutory change, an appellate decision may be the only way in which the issue of subject matter jurisdiction can be resolved. Compare Cucinotta v. Hanulak, 231 AD2d 904, 905(4th Dept., 1996)("A small claim judgment will not be overturned unless the court's determination is clearly erroneous and the deviation from substantive law is readily apparent.")(citations, internal punctuation and quotation marks omitted).

Footnote 28:As noted by the Matrimonial Commission's February, 2006, Report to the Chief Judge of the State of New York, [t]he issues presented in matrimonial and related maters are numerous and diverse, requiring the judge to be knowledgeable about statutory and case law relevant to matrimonial proceedings, as well as areas of tax, bankruptcy law, the appraisal of commercial assets, realty, enhanced earnings and professional license valuations, among other things. There are few other actions in which the outcome will have an immediate and likely generational effect on human beings. (Id. at 15).The commission also noted that "as a result of New York's unique split court system, custody , parenting time and ancillary issues may be determined in both Supreme and Family courts. The overlapping jurisdiction of these courts often causes duplication and confusion, adding cost, delay and trauma to such proceedings." (Id. at 25). Accordingly, the Commission recommended among other things that as much as practicable the Supreme Court Justice who hears the divorce also hear all other ancillary matters and retain jurisdiction for at least 18 months after the final decree to hear applications regarding the divorce.

Footnote 29:Williams v. Roper, 269 AD2d 125 (1st Dept. , 2000) app. dism. 95 NY2d 898 (2000).See also Cruz v. Beechwood RB LLC., 11 Misc 3d 126(A) (N.Y.Sup.App.Term,2006).

Footnote 30:City Court is constitutionally precluded from transferring matters before it to the Supreme or Family Court. NY Constitution, Article 6, §19(I).