Overpaid Child Support
by Wes Cowell; updated 6 June 2015 -- suggest a correction
Voluntary overpayment of child support is usually are not recoverable. Child support overpayments via withholding (garnishment) may be recouped in some circumstances. Work with a lawyer. Need advice? Call, leave your info, or scheduleschedule a consultation.
When an obligor overpays child support, sometimes the overpayment can be recovered and sometimes not. There is no statute that determines whether an overpayment of child support must be reimbursed. There are, however, a few appellate cases that shed some light:
Credit for Overpayment Denied -- Harner v. Harner: The seminal case on reimbursement of child support overpayment is Harner v. Harner, 105 Ill.App.3d 430, 434 N.E.2d 465, (1st Dist., 1982). Joan and William Harner had four kids and divorced in 1974. William paid support and was also ordered to pay extraordinary medical expenses. William unilaterally reduced his support shortly after the oldest child emancipated (as he was allowed to do under the terms of the Judgment).
A word of warning: in William's and Joan's time parties could agree to a unilateral reduction of support upon a child's emancipation. That's no longer allowed. Today, only the court may modify a support order, even for something as simple and obvious as emancipation. For an explanation, see my articles: Modifying Child Support and Emancipation and Reducing Child Support.
William's delay before implementing the unilateral reduction resulted in a small overpayment of child support. When the second child emancipated, William forgot that he could unilaterally reduce his obligation and just kept on paying the old amount of support. By the time he realized his mistake, he had overpaid support by some $3,360.
Eventually, Joan wanted William to reimburse her for some extraordinary medical expenses she had incurred. William refused and insisted that his overpayment of support be applied against his obligation for the medical expenses. They ended up in court. The trial court agreed with William. Joan appealed. The appellate court noted that it was a case of first impression in Illinois and, citing cases from Indiana, Missouri, New York, and Louisiana, said:
"[T]he general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree. This is true even where, as here, the payments are made under the mistaken belief that they are legally required. (citations omitted) The policy underlying this rule is to prevent the supporting parent from unilaterally modifying the support decree and thereby affecting the expectations of the custodial parent as to support payments. We find merit to this rule and therefore adopt it."
Harner v. Harner, 105 Ill.App.3d 430, 433, 434 N.E.2d 465, (1st Dist., 1982).
Credit for Overpayment Allowed -- In re: Marriage of Tollison: A simple situation begat a simple rule. Then, along came In re: Marriage of Tollison, 208 Ill.App.3d 17, 566 N.E.2d 652, 153 Ill.Dec. 2 (1991, 5th Dist.). Deloris and John Tollison divorced in April, 1984. Delores had filed in November, 1983 and was awarded $500 / month in temporary support for the five minor children (eight kids, total). A few months later, while the case was still going on, John sought a reduction in his obligation as three of the minor children were then living with him. That's how the case concluded: three with him, two with her, and he was ordered to pay $25 / month in child support and $213.76 / month in maintenance. John's payments were made by a withholding order (garnishment) on his paychecks.
Within a year they were back in court with Deloris complaining that John wasn't paying as ordered. A new order was entered 23 May 1985 resolving the accrued arrearage. Four years later, John went back to court asking that the numbers be crunched, again, because he thought that by then, he had satisfied the arrearage. Deloris countered with a request to increase support and a claim for unpaid medical expenses. The court concluded that, in fact, John had overpaid under the 23 May 1985 order. The numbers were fairly complicated so the court reasoned in the aggregate: it concluded that since 23 May 1985 John's obligations for support, maintenance, and the arrearage amounted to $23,115.92 and he had paid (under the withholding order) $27,810.75. So, there WAS an overpayment . . . but what to do about it? The court gave the lawyers a week to brief the issue. The lawyers came up with nothing -- apparently they didn't even find the Harner rule. With that paucity of authority, the court ruled that John should receive no reimbursement. John appealed.
The appellate court said that issues of child support overpayment fall into two categories: voluntary (the obligor writes a check) and involuntary (withholding orders). The court referenced the Harner rule that usually no reimbursement is warranted for the voluntary overpayment of child support. The Tollison court noted, however, that John's payments weren't voluntary, like in Harner (there was no withholding order in Harner --William simply wrote a check to Joan once a month). John's wages were subject to a withholding order that paid a little child support, a little arrearage, and a LOT of maintenance.
The Tollison court said there could be plenty of exceptions to the Harner rule, so long as "the equities of the circumstances so demand, and provided such allowance will not work a hardship." Well, if exceptions can be made under the Harner rule for voluntary payments (like, where William wrote Joan checks), certainly there could be an exception in the case of a withholding order that overstayed its term, right? Right!
"John Tollison paid more through the deduction order than he was obligated to pay . . . . the underlying principle . . . is that one person should not profit at the expense of another because of a wrong or a mistake . . . fundamental fairness demands that . . . credit be given."
In re: Marriage of Tollison, 208 Ill.App.3d 17, 566 N.E.2d 652, 153 Ill.Dec. 2 (1991, 5th Dist.).
Conclusion: Overpaments of support might be recoverable. Recovery is more likely where support is garnished as opposed to voluntary, non-garnished payments.
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