Weaver v. Weaver

• Decision Date: 21 October 2021
• Docket Number: 532136
• Citation: 198 A.D.3d 1168,156 N.Y.S.3d 474
• Parties: In the Matter of Stanton E. WEAVER Jr., Appellant, v. Mary E. WEAVER, Respondent.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 1168
156 N.Y.S.3d 474

In the Matter of Stanton E. WEAVER Jr., Appellant,
v.
Mary E. WEAVER, Respondent.

532136

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 14, 2021
Decided and Entered: October 21, 2021

156 N.Y.S.3d 475

Stanton E. Weaver Jr., Canajoharie, appellant pro se.

Becker, Glynn, Muffly, Chassin & Hosinski, LLP, New York City (William H. Newman of counsel) and Pro Bono Appeals Program, Buffalo (Jonathan S. Reiner of counsel), for respondent.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

198 A.D.3d 1168

Appeal from an order of the Family Court of Fulton County (McAuliffe, J.), entered July 6, 2020, which, in a proceeding pursuant to Family Ct Act article 4, among other things, denied petitioner's objections to an order of a Support Magistrate.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of one child (born in 2003). A December 2018 judgment of divorce incorporated, without merger, the provisions of their oral opting out agreement. The agreement set forth the father's maintenance and child support obligations, as well as a provision that the father's employment would cease in December 2018 and that, thereafter, the parties expected that the father would receive either a disability pension or long-term disability benefits, either of which would necessitate a modification of the father's child support and maintenance obligations.

The father commenced this proceeding seeking to reduce his maintenance and child support obligations on the ground that he earns substantially less in disability benefits than when he was employed. He further asserts that, as a result of his disabled status, the child now receives Social Security disability payments that, in his view, should defray his

156 N.Y.S.3d 476

child support payments.¹ Following a hearing, the Support Magistrate determined that the father demonstrated a significant change

198 A.D.3d 1169

in his earning ability and, thus, reduced his child support and maintenance payments and granted the father a credit for overpayment of maintenance and child support. However, the Support Magistrate did not deviate from the Child Support Standards Act as requested by the father based on the child's receipt of Social Security disability payments and credited arrears as of the date of the petition – July 22, 2019. The Support Magistrate additionally awarded the sum of $4,159.56 as a credit for overpayment of child support from July 22, 2019 until May 31, 2020, allowing the credit to be used to satisfy any outstanding child support arrears at the time of the ruling, but disallowed recoupment of the father's overpayment of child support from future and continuing child support payments. The father and the mother filed specific written objections to the Support Magistrate's order. Family Court denied the objections, and the father appeals.

The father argues that Family Court erred in dismissing his objections with regard to the proper date of modification of his child support and maintenance payments, failing to allow him to recoup amounts that he claims as overpayments in...