Opinion
2014-00400, Docket No. F-2856-06.
2015-04-01
In the Matter of Mary C. APUZZO, appellant, v. Daniel CAZEAU, respondent.
Mastro, J.P., Dillon, Hall and Miller, JJ., concur.
Gary E. Eisenberg, New City, N.Y., for appellant. Stacy Sabatini, New City, N.Y., for respondent.
Appeal from an order of the Family Court, Rockland County (William P. Warren, J.), dated December 4, 2013. The order denied the mother's objections to an order of the same court (Catherine M. Miklitsch, S.M.), which, after a hearing, denied her petition alleging that the father was in willful violation of an order of child support.
ORDERED that the order dated December 4, 2013, is affirmed, without costs or disbursements.
Contrary to the mother's contention, she was afforded her right to due process at the hearing on her violation petition ( see Matter of Bianco v. Bruce–Ross, 107 A.D.3d 886, 887, 969 N.Y.S.2d 65).
Proof of failure to pay child support as ordered constitutes prima facie evidence of a willful violation of an order of support ( see Family Ct. Act § 454[3]; Matter of Logue v. Abell, 97 A.D.3d 582, 947 N.Y.S.2d 329). Once a prima facie showing has been made, the burden shifts to the party that owes the support to offer some competent, credible evidence of his or her inability to make the required payments ( see Family Ct. Act § 454[3][a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154).
Here, the evidence presented at the hearing with respect to the father's arrears satisfied the mother's prima facie burden ( see Family Ct. Act § 454 [3][a]; Matter of Bianco v. Bruce–Ross, 107 A.D.3d at 887, 969 N.Y.S.2d 65). However, under the circumstances of this case, the father, by adducing competent, credible evidence of his inability to make the required payments, met his burden of establishing that he did not willfully violate the subject child support order ( see Matter of Granberg v. Granberg, 112 A.D.3d 714, 976 N.Y.S.2d 396; Matter of Lecei v. Lecei, 112 A.D.3d 629, 630, 975 N.Y.S.2d 774).
Accordingly, the Family Court properly denied the mother's objections to the Support Magistrate's order denying her petition alleging that the father was in willful violation of the child support order.