Opinion
125 CAF 19-01514
03-26-2021
In the Matter of Elizabeth FOLEY, Petitioner-Respondent, v. James L. DWYER, Respondent-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order denying his objections to the order of the Support Magistrate, which, inter alia, determined that he willfully violated a prior order of child support. We affirm. A parent is presumed to have sufficient means to support his or her minor child (see Family Ct Act § 437 ; Matter of Monroe County Child Support Enforcement Unit v. Hemminger , 186 A.D.3d 1093, 1093, 127 N.Y.S.3d 381 [4th Dept. 2020] ; Matter of Wayne County Dept. of Social Servs. v. Loren , 159 A.D.3d 1504, 1504-1505, 70 N.Y.S.3d 151 [4th Dept. 2018] ). Thus, evidence that a respondent has failed to pay child support as ordered constitutes "prima facie evidence of a willful violation" ( Matter of Movsovich v. Wood , 178 A.D.3d 1441, 1441, 112 N.Y.S.3d 660 [4th Dept. 2019], lv denied 35 N.Y.3d 905, 2020 WL 3056327 [2020] [internal quotation marks omitted]; see § 454 [3] [a]).
Here, petitioner made out a prima facie case of a willful violation by establishing that respondent had not made certain support payments required by the prior order, a claim that respondent did not dispute (see Matter of Riggs v. VanDusen , 78 A.D.3d 1577, 1577, 910 N.Y.S.2d 633 [4th Dept. 2010] ). The burden thus shifted to respondent to offer "some competent, credible evidence of his inability to make the required payments" ( Matter of Powers v. Powers , 86 N.Y.2d 63, 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; see Matter of Huard v. Lugo , 81 A.D.3d 1265, 1267, 917 N.Y.S.2d 459 [4th Dept. 2011], lv denied 16 N.Y.3d 710, 2011 WL 1584768 [2011] ). Respondent failed to meet that burden. Although respondent testified that he had no source of income and no assets, he was able to provide for his own food and shelter (see Matter of Fallon v. Fallon , 286 A.D.2d 389, 389, 728 N.Y.S.2d 725 [2d Dept. 2001] ) even though he had not applied for public assistance since losing his job in 2017. Respondent admitted that he was not physically or mentally incapable of working, and he failed to present evidence establishing that he made reasonable efforts to obtain gainful employment to meet his support obligation (see Movsovich , 178 A.D.3d at 1442, 112 N.Y.S.3d 660 ; Matter of Christine L.M. v. Wlodek K. , 45 A.D.3d 1452, 1452-1453, 846 N.Y.S.2d 849 [4th Dept. 2007] ). According deference to the Support Magistrate's credibility assessments (see Matter of Mandile v. Deshotel , 166 A.D.3d 1511, 1512, 87 N.Y.S.3d 766 [4th Dept. 2018] ), we find no reason to disturb her determination that respondent failed to demonstrate his inability to comply with the child support order (see Matter of Roshia v. Thiel , 110 A.D.3d 1490, 1492, 972 N.Y.S.2d 804 [4th Dept. 2013], lv dismissed in part and denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 [2013] ).
Respondent failed to preserve for our review his contentions that the Support Magistrate erred in refusing to reopen the underlying support proceeding (see Matter of White v. Knapp , 66 A.D.3d 1358, 1359, 886 N.Y.S.2d 527 [4th Dept. 2009] ) and that his support arrears should have been capped because his income fell below the federal poverty guidelines (see Matter of Farruggia v. Farruggia , 125 A.D.3d 1490, 1490, 3 N.Y.S.3d 859 [4th Dept. 2015] ). Respondent's contention that the prior order of support is invalid is not properly before this Court (see Family Ct Act § 439 [e] ; see also Matter of Ouimet v. Ouimet , 193 A.D.2d 1099, 1099, 598 N.Y.S.2d 632 [4th Dept. 1993] ). Finally, to the extent that respondent contends that he was denied effective assistance of counsel in this proceeding due to the failure of counsel to object to the prior order of support on the ground that his income was calculated in contravention of Family Court Act § 413 (1), we reject that contention (see Matter of Cyle F. [Alexander F.] , 155 A.D.3d 1626, 1628, 64 N.Y.S.3d 842 [4th Dept. 2017], lv denied 30 N.Y.3d 911, 71 N.Y.S.3d 5, 94 N.E.3d 487 [2018] ; see generally Matter of Girard v. Neville , 137 A.D.3d 1589, 1590, 26 N.Y.S.3d 897 [4th Dept. 2016] ).