A common question that arises in Arizona family court cases is whether the payer (sometimes called the “obligor”), may recover overpayments of child support. The short answer is yes, but there are limits on when and how this occurs. While Arizona law permits the reimbursement of overpaid child support in certain circumstances, recovery depends on the timing, underlying facts, and whether arrears exist at the time of the request. Arizona statutes and recent Arizona appellate decisions shape how courts exercise that authority. This writing discusses some of the common scenarios resulting in an overpayment of child support and the some of the legal theories on which a trial court may order reimbursement of an overpayment.

Overpayments toward a child support obligation can arise due to a number of different circumstances. For instance, an overpayment of child support can arise when there is a retroactive modification of the child support order. See generally Amadore v. Lifgren, 431 P.3d 607 (Ariz. App. 2018) (discussing overpayment caused by retroactive modification or termination of a child support order). In other instances, an overpayment may occur when a payer is entitled to credit for a benefits payment is made directly to the payee that was inadvertently not accounted for in the child support calculation. See generally Allen, 386 P.3d at 1291-92 (discussing overpayment caused by derivative disability payments made directly to payee while child support payments were made by payer).

Overpayments due to the retroactive application of some child support orders are particularly common. With respect to child support orders, “[m]odification and termination are effective on the first day of the month following notice of the petition for modification or termination unless the court, for good cause shown, orders the change to become effective at a different date but not earlier than the date of filing the petition. . . .” Ariz. Rev. Stat. Ann. § 25-503(E) (emphasis added). Similarly, Arizona statute provides that:

Ariz. Rev. Stat. Ann. § at 25-320(B) (emphasis added). “If the parties lived apart before the date of the filing . . . the court may order child support retroactively to the date of separation, but not more than three years before . . . .” Id. at 25-320(B). In some instances, payments made before a retroactive child support (such as a payments made under the terms of a temporary order for child support) may be in excess of the final ordered amount, resulting in an overpayment. 

The Arizona Revised Statutes provide a specific procedure for allowing an obligor to seek reimbursement for an overpayment of child support, subject to certain conditions. See Ariz. Rev. Stat. Ann. § 25-527.

• First, the statute allows reimbursement for the overpayment of child support after the payer’s obligation has terminated. See id. at § 25-527(A).
• Second, the statute authorizes reimbursement if the payer’s arrears and interest obligations have been satisfied. See id. at § 25-527(B).

Section 25-527(A) also imposes a 24-month window for the filing of a request for reimbursement of the overpayment of child support under the statute. See id.

Notably, the applicable statute provides that the payee “must pay the judgment [for reimbursement] directly to the [payer] and not through the clerk of the superior court or the support payment clearinghouse.” See id. at § 25-527(C). Also, a judgment for reimbursement of overpaid child support entered under the statute “does not constitute a support judgment and is enforceable only in the same manner as a civil judgment.” See id. at § 25-527(D).

In addition to the statutory procedure for reimbursement after the termination of the child support, there is some authority in Arizona for the proposition that a trial court may enter award credits or judgments for reimbursements in making deviations to a child support order. For example, Division 2 of the Arizona Court of Appeals has opined that “it might also be permissible” for a trial court to order a reimbursement while a child support order is in effect by deviating from the Arizona Child Support Guidelines to reimburse a party for overpayments caused by the receipt of derivative disability benefits. In re Marriage of Allen, 386 P.3d 1287, 1291 (Ariz. App. 2016). According to Allen, however, in the context of an order for reimbursement based on a deviation the trial court is obliged to:

• consider “all relevant factors”, 
• state what the child support have been without the deviation and what is it going to be with the deviation, 
• find that specific criteria have been met, and 
• make written findings that the “[a]pplication of the guidelines is inappropriate or unjust” and that the deviation is made in the best interests of the child.

See id. at 1291-92. 

Furthermore, soon after the Allen opinion was decided, Division 1 of the Arizona Court of Appeals considered the application of the Allen opinion to the question of reimbursement for overpayments made pending a petition to modify child support. See generally Amadore v. Lifgren, 431 P.3d 579, 587-88 (Ariz. App. 2018). In Amadore, the court appeared to generally affirm the reasoning of the Allen opinion, while declining to explicitly determine whether it applied to overpayments made during the pendency of a petition to modify. See id. Instead, the Amadore court generally explained: “although the legislature has not specifically foreclosed the possibility of recouping a child support overpayment through a reduction in the monthly child support obligation, the reduction cannot conflict with the child’s best interests.” Id. at 587.

A few years later, however, in the Bucklier opinion, Division 1 of the Arizona Court of Appeals held that reimbursement through the reduction of future child support payments was only permissible when the overpayment was caused by a temporary order during the pendency of the action and did not apply to overpayment caused by final orders. See Bucklier v. Bucklier, 516 P.3d 526, 532-33 (Ariz. App. 2022). In commenting on the trial court’s rationale in declining to award a reimbursement for the overpayment of child support until the order terminated, the Bucklier court wrote: “Although the court’s rationale is accurate for overpayments above a final child support order, the decree must account for over- and underpayments from temporary orders, including offsets.” Id. at 532. In reaching its conclusion, the Bucklier opinion did not specifically refer to the Allen opinion or the Amadore opinion and instead relied on citations from foreign jurisdictions in observing a policy that child support payments should have continuity rather than be interrupted by reimbursement for overpayment. See id. It is unclear whether this reasoning would also foreclose the use of an ordinary money judgment for reimbursement. It would appear, based on the aforementioned statute and case law, that the limits on and contours of reimbursements for child support overpayment (made while a final child support order is in effect), may require further guidance from Arizona appellate courts. 

The attorneys of Huffman-Shayeb Law, PLLC have experience assisting clients with establishing, modifying, and terminating child support orders, as well as seeking reimbursement for the overpayment of child support orders. If you are looking for experienced and compassionate legal representation in the State of Arizona for a family law matter, contact Huffman-Shayeb Law, PLLC today to set up a consultation.