Opinion
2014-04545, Docket No. F-5527-11.
04-22-2015
In the Matter of Rachel GILLISON, respondent, v. Ricky GILLISON, appellant.
Marc A. Greenberg, Elmsford, N.Y., for appellant.
Marc A. Greenberg, Elmsford, N.Y., for appellant.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion Appeal from an order of the Family Court, Westchester County (Nilda Morales Horowitz, J.), dated April 24, 2014. The order confirmed the finding of a Support Magistrate (Rosa Cabanillas–Thompson, S.M.), made after a hearing, that the father willfully violated a prior order of child support, and directed that he be committed to the Westchester County Jail for a period of three months unless he paid the purge amount of $5,000.
ORDERED that the appeal from so much of the order as directed that the father be incarcerated for a period of three months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Rodriguez v. Suarez, 93 A.D.3d 730, 939 N.Y.S.2d 870 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
The Family Court properly confirmed the Support Magistrate's finding that the father willfully violated a prior order of child support. Evidence of the father's failure to pay child support as ordered constituted prima facie evidence of a willful violation (see Family Ct. Act § 454[3][a] ; Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of McMinn v. Taylor, 118 A.D.3d 887, 888, 988 N.Y.S.2d 247 ). The burden then shifted to the father to offer competent, credible evidence of his inability to make the required payments (see Matter of Powers v. Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). The father, whom the Support Magistrate found lacked credibility in his testimony regarding his search for employment, failed to sustain this burden. The father claimed that he was unemployed and impecunious, but he failed to present competent, credible evidence that he had actively sought employment sufficient to rebut the mother's prima facie showing (see Matter of McMinn v. Taylor, 118 A.D.3d at 888, 988 N.Y.S.2d 247 ; Matter of Rhodes v. Nelson, 113 A.D.3d 864, 865, 979 N.Y.S.2d 541 ; Matter of Logue v. Abell, 97 A.D.3d 582, 583, 947 N.Y.S.2d 329 ; Matter of Vasconcellos v. Vasconcellos, 37 A.D.3d 613, 829 N.Y.S.2d 705 ).
The father's remaining contentions, including his contention that the Family Court erred in dismissing his petition for a downward modification of his child support obligation, are not properly before this Court (see Matter of Greene–Tyus v. Tyus, 61 A.D.3d 758, 878 N.Y.S.2d 79 ).