Opinion
11-25-2015
In the Matter of Lynda Marie GORSKY, respondent, v. John Alexander KESSLER, appellant.
Gloria Marchetti–Bruck, Mount Kisco, N.Y., for appellant. Lynda Gorsky, named herein as Lynda Marie Gorsky, respondent pro se.
Gloria Marchetti–Bruck, Mount Kisco, N.Y., for appellant.
Lynda Gorsky, named herein as Lynda Marie Gorsky, respondent pro se.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, and BETSY BARROS, JJ.
Appeal from an order of the Family Court, Westchester County (Michelle I. Schauer, J.), dated July 16, 2014. The order confirmed the finding of a Support Magistrate (Esther R. Furman, S.M.), made after an inquest, 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 six months unless he paid the purge amount of $72,180.
ORDERED that the order is affirmed, without costs or disbursements.
"[F]ailure to pay support as ordered itself constitutes ‘prima facie evidence of a willful violation’ " which "shift[s] to [the] respondent the burden of going forward" with "some competent, credible evidence of his [or her] inability to make the required payments" (Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154, quoting Family Ct. Act § 454[3][a] ; see Matter of Saraguard v. Saraguard, 125 A.D.3d 982, 5 N.Y.S.3d 189 ; Matter of Pryce v. Greene, 125 A.D.3d 972, 973, 5 N.Y.S.3d 187 ). Here, at an inquest held upon the father's failure to appear on the scheduled hearing date, a representative of the Support Collection Unit testified as to the father's arrears, and the father did not present any evidence to the contrary. Accordingly, the mother's prima facie burden was satisfied (see Matter of Bianco v. Bruce–Ross, 107 A.D.3d 886, 887, 969 N.Y.S.2d 65 ; Matter of Gorsky v. Kessler, 79 A.D.3d 746, 912 N.Y.S.2d 649 ; Matter of Calvello v. Calvello, 20 A.D.3d 525, 526, 800 N.Y.S.2d 429 ; Matter of Powers v. Horner, 12 A.D.3d 609, 785 N.Y.S.2d 117 ; Matter of Sapp v. Taylor, 298 A.D.2d 590, 591, 749 N.Y.S.2d 539 ). In response, the father, who failed to produce required financial disclosure and did not appear at the inquest, offered no competent, credible evidence of his inability to make the required payments (see Matter of Powers v. Powers, 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Saraguard v. Saraguard, 125 A.D.3d at 982, 5 N.Y.S.3d 189 ; Matter of McMinn v. Taylor, 118 A.D.3d 887, 888, 988 N.Y.S.2d 247 ; Matter of Calvello v. Calvello, 20 A.D.3d at 526, 800 N.Y.S.2d 429 ).
Furthermore, the father's post-inquest notification to the Family Court that he had filed a bankruptcy petition did not rebut the mother's prima facie showing, made at the inquest at which he did not appear, that his violation of the prior order of child support was willful. While a bankruptcy petition does create an automatic stay as to certain types of proceedings (see 11 U.S.C. § 362 [a] ), 11 U.S.C. § 362 specifically excludes from the automatic stay proceedings for "the collection of a domestic support obligation from property that is not property of the [bankruptcy] estate" (11 U.S.C. § 362 [b][2][B]; see Bloch v. Bloch, 2010 WL 3824125, *2, 2010 U.S. Dist. Lexis 99891, *5 [E.D.N.Y., No. 09–CV–3963 (RRM) ]; Matter of Johnston, 321 B.R. 262, 274 [Bankr.D.Ariz] ; In Re Bezoza, 271 B.R. 46, 51 [Bankr.S.D.N.Y.] ; see also Matter of Moon, 211 B.R. 483, 485 [Bankr.S.D.N.Y.] ). Here, the father failed to sustain his burden of establishing that he was unable to make the required payments from property that was not part of the bankruptcy estate (see Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). Furthermore, domestic support obligations are not dischargeable in bankruptcy (see 11 U.S.C. § 523 [a][5]; In Re Cole, 202 B.R. 356, 358 [Bankr.S.D.N.Y.] ). Accordingly, the Family Court properly confirmed the Support Magistrate's finding of willfulness and set a purge amount.
The Family Court was within its discretion to direct that the father be committed to jail for a term not to exceed six months upon finding that the father willfully violated the prior order of child support (see Family Ct. Act § 454[3][a] ; Matter of Gorsky v. Kessler, 79 A.D.3d at 746, 912 N.Y.S.2d 649 ; Matter of Armstrong v. Belrose, 9 A.D.3d 625, 627, 779 N.Y.S.2d 662 ; Matter of Commissioner of Social Servs.
v. Rosen, 289 A.D.2d 487, 489, 736 N.Y.S.2d 42 ). Here, there is no basis to disturb the Family Court's determination.
The purge amount of $72,180 was appropriate with respect to the father's total arrears (see Matter of Powers v. Horner, 12 A.D.3d at 609–610, 785 N.Y.S.2d 117 ; Matter of Cattell v. Cattell, 254 A.D.2d 357, 678 N.Y.S.2d 657 ).
The father's remaining contentions are without merit.