Opinion
528171
04-02-2020
In the Matter of AMANDA YY., Respondent, v. RAMON ZZ., Appellant.
Ramon ZZ., Syracuse, appellant pro se. Jackson Bergman, LLP, Binghamton (Dhyana M. Estephan of counsel), for respondent.
Ramon ZZ., Syracuse, appellant pro se.
Jackson Bergman, LLP, Binghamton (Dhyana M. Estephan of counsel), for respondent.
Before: Clark, J.P., Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Clark, J.P.
Pursuant to a July 2017 order of support, respondent (hereinafter the father) was required – upon a written demand accompanied by relevant bills and receipts – to reimburse petitioner (hereinafter the mother) for 51% of all child care and uninsured health care expenses incurred on behalf of their son (born in 2013). In March 2018, the mother filed a petition alleging that the father had willfully violated the support order by failing to comply with her written demands for reimbursement of the child's day care and uninsured health care costs. Following a hearing, at which the mother was the sole witness, a Support Magistrate determined that the father had willfully violated the support order, awarded the mother counsel fees and directed judgment against the father for arrears. Upon the father's objections, Family Court found that the father had violated the July 2017 support order, but that the violation was not willful. As a result, Family Court denied the mother's request for counsel fees and entered a judgment against the father for arrears. The father appeals, primarily arguing that he could not have violated the support order because the mother did not provide him with written demands for reimbursement in accordance with the support order.
"A showing that a parent has failed to pay child support as ordered establishes a willful violation on a prima facie basis and ‘shifts the burden to the parent who owes the support to come forward with competent, credible evidence of his or her inability to pay’ " ( Matter of Shkaf v. Shkaf , 162 A.D.3d 1152, 1153, 78 N.Y.S.3d 462 [2018] [citations omitted], quoting Matter of Dench–Layton v. Dench–Layton , 151 A.D.3d 1199, 1201, 56 N.Y.S.3d 598 [2017] ). The mother's uncontested proof established that she sent the father 12 emails with attached bills and/or receipts for the child's day care and unreimbursed medical expenses, each of which noted the amount owed by the father, and that the expenses nonetheless went unpaid by the father. Contrary to the father's assertion, the mother's emails and attached documentation constituted written demands triggering the father's reimbursement obligations. As the Support Magistrate held, "[t]o construe [the mother's emails] as anything but a demand [for reimbursement] defies logic and common sense." Thus, inasmuch as the mother's unrebutted proof established that the father failed to reimburse the mother for the child's day care and uninsured medical expenses, despite written demands for such, we discern no basis upon which to disturb Family Court's finding that the father violated the prior support order (see Matter of Duprey v. Klaers , 167 A.D.3d 1288, 1289, 91 N.Y.S.3d 280 [2018] ).
In reply to one of the mother's emails, the father even referred to the mother's reimbursement demand as a "request."
We are inclined to agree with the Support Magistrate that the father's violation of the support order was willful. However, as the mother did not file a notice of cross appeal, the issue of willfulness is not before us (see Matter of Duprey v. Klaers , 167 A.D.3d at 1290 n 1, 91 N.Y.S.3d 280 ; Matter of Cunningham v. Talbot , 152 A.D.3d 886, 887, 58 N.Y.S.3d 717 [2017] ; Matter of Dibble v. Valachovic , 141 A.D.3d 774, 775 n, 34 N.Y.S.3d 727 [2016] ).
The father's remaining arguments are not properly before us, as they are raised for the first time on appeal (see Matter of Porter v. D'Adamo , 113 A.D.3d 908, 910, 979 N.Y.S.2d 407 [2014] ; Matter of Ciampi v. Sgueglia , 252 A.D.2d 755, 758, 676 N.Y.S.2d 243 [1998] ).
Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the order is affirmed, without costs.