THIS WEEK’S ARTICLE considers an email which reads in part: “My ex-husband was required to pay the monthly sum of $800 for the two minor children of the marriage. However, over the past two years he has been paying the sum of $1 600, a sum he had paid voluntarily for one year prior to the court order.
Am I entitled to keep the excess payments or are these payments to be treated as pre-payments of monies due under the order of the court?”
This is a very interesting question. In considering my response to the question, I came across a 2010 decision of the Court of Appeal of Indiana in a case called Crickmore vs Crickmore, where there was an involuntary overpayment of spousal maintenance.
The court in arriving at its decision referred to the legal position in Indiana in cases where there was an overpayment of child support since until then were no cases dealing with overpayment of spousal maintenance. Here is an extract from the judgment of the court, delivered by Judge Robb:
“In general, where a parent voluntarily overpays his or her child support obligation in an attempt to receive a prospective credit, the excess amount is treated as a gratuity to the children and no credit is granted – Brown vs Brown (Ind. 2006).
“The reason for the rule is that permitting a parent to build up a substantial credit and then later refusing to make support payments would thwart the purpose of providing regular, uninterrupted income for the benefit of the children. Id. This rule does not apply, however, where overpayments of child support are involuntary . . . .
Voluntary vs involuntary
“While here the question involves overpayment of spousal maintenance rather than child support, the same reasons for distinguishing between voluntary and involuntary overpayments are similarly applicable.
“Overpayments of maintenance that are involuntary are not reasonably regarded as gratuities to the former spouse for the benefit of the children, if any.”
In the above-mentioned case the overpayment was involuntary in the sense that after making full payments pursuant to the order of the court that granted the divorce, the husband made efforts to have a stop put to “the wage withholding order”, the existence of which eventually resulted in his paying more than $30 000 in excess payments to the wife, who was well aware of the facts.
The court found in favour of the husband who had brought an action to recover the excess sums paid to the wife.
Of course, we are not bound to follow or even consider the decision of the Indiana court. However, the decision does seem to accord with common sense and analogous legal principles governing payments by mistake.
If moneys are overpaid by mistake (for example, an overpayment of salary) to an employee, usually he is not entitled to keep the excess and the employer may seek to recover the moneys overpaid. However, where a bonus or increased payment is deliberately paid then it is a different matter.
On the facts, it seems more likely that the husband was making a gratuitous payment of $800 per month to the two children.
If the husband wanted, for example, to make an accelerated payment, it is submitted that he would need to seek a variation of the order of the court.
On the facts, it is therefore submitted that the husband is up to date in his payments and he will be obliged to continue to pay the sum of $800 per month until further order of the court.
Of course, he is entitled to continue to make additional provision for his children in accordance with his means. He is to be commended for this.
If the excess payments were made because the husband mistakenly thought that he was required to pay US$800 and the wife was aware of this, it is submitted that the excess would be recoverable from the wife.
However, it could not be set off against further maintenance payments for the benefit of the children.
Cecil McCarthy is a Queen’s Counsel.
