Opinion
February 17, 1970
Order of Family Court entered May 1, 1969, denying application of petitioner wife to fix and enforce arrears, temporarily modifying a previous support order, and denying application for additional counsel fees, unanimously modified on the law, to the extent of deleting provision directing reduction of weekly support, and otherwise affirmed, without costs or disbursements. The previous support order directing payment in the sum of $150 per week for the support of the child, in lieu of all other payments, was made pursuant to order of this court, February 10, 1969. ( 31 A.D.2d 797.) And the payments were to be retroactive to May 24, 1968. Since the husband did not request or obtain a stay of the Family Court order, restitution or recoupment of payment made pursuant to it is not proper. "Temporary alimony paid pursuant to an order which is subsequently reversed may not be recovered by the husband either directly by restitution or indirectly by recoupment. ( Averett v. Averett, 110 Misc. 584, affd. 191 App. Div. 948; Haas v. Haas, 271 App. Div. 107; see also, Weitzenkorn v. Weitzenkorn, 15 A.D.2d 765.)" ( Baker v. Baker, 17 A.D.2d 924, 925.) The right to restitution or recoupment in cases of alimony, following reversal or modification, as herein, is not recognized. This, because right to support arises out of the policy of the law and not of contract. The same rationale applies to instances of child support and the elementary social obligation of a parent to support his own offspring. That too has already been judicially observed. (See Glassman v. Glassman, 41 Misc.2d 132.)
Concur — Stevens, P.J., Eager, McGivern and Steuer, JJ.