Opinion
2013-04-11
In re APRIL G., Petitioner–Respondent, v. DUANE M., Respondent–Appellant.
Andrew J. Baer, New York, for appellant.
, P.J., FRIEDMAN, ABDUS–SALAAM, ROMÁN, CLARK, JJ.
Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about May 16, 2012, which affirmed the Support Magistrate's finding of willfulness, and sentenced respondent-appellant father to incarceration for a period not to exceed four months with a purge amount set at $5,000.00, unanimously affirmed, without costs.
Although the father has paid the purge amount and completed his sentence, this appeal “is not academic, in light of the enduring consequences which might flow from the finding that he violated the order of support” ( Matter of Saintime v. Saint Surin, 40 A.D.3d 1103, 1104, 838 N.Y.S.2d 580 [2d Dept. 2007] ).
The father, however, failed to rebut the prima facie evidence of his willful violation of the order of support ( seeFamily Ct. Act § 454[3] [a] ). Indeed, the father failed to present credible evidence that his medical condition renders him unable to provide support for the subject child, or that he is financially unable to pay ( compare Matter of Ferrara v. Ferrara, 52 A.D.3d 599, 600, 860 N.Y.S.2d 577 [2d Dept. 2008], lv. denied11 N.Y.3d 706, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008],with Matter of John T. v. Olethea P., 64 A.D.3d 484, 485, 883 N.Y.S.2d 38 [1st Dept. 2009] ).
To the extent the father argues that the court failed to settle the record on appeal, he has failed to show that evidence exists to remedy the deficiencies in his proof.