Opinion
2013-12-11
In the Matter of Pieter GRANBERG, respondent, v. Dawn Lynn GRANBERG, appellant.
Anthony DeGuerre, Staten Island, N.Y., for appellant.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Richmond County (Lim, J.), dated February 21, 2013, which, upon findings of fact of the same court (Hickey, S.M.) dated February 6, 2013, made after a hearing, inter alia, finding that she willfully violated a prior order of support dated November 13, 2006, and recommending that she be incarcerated for a period of six months, in effect, granted the petition, confirmed the finding of willfulness, and directed that she be incarcerated for a period of six months unless she paid the sum of $60,000.
ORDERED that order dated February 21, 2013, is reversed, on the facts, without costs or disbursements, and the petition to adjudicate the mother in willful violation of the child support order dated November 13, 2006, is denied.
The mother's failure to pay child support as directed in the order dated November 13, 2006, constituted “prima facie evidence of a willful violation” of an order of support (Family Ct. Act § 454[3][a]; see Matter of Probert v. Probert, 67 A.D.3d 806, 807, 888 N.Y.S.2d 181). The burden then shifted to the mother to offer “some competent, credible evidence of [her] 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; see Family Ct. Act § 454[3][a]; Matter of Gorsky v. Kessler, 79 A.D.3d 746, 912 N.Y.S.2d 649; Matter of Brennan v. Burger, 63 A.D.3d 922, 923, 882 N.Y.S.2d 181; Yeager v. Yeager, 38 A.D.3d 534, 831 N.Y.S.2d 496).
Here, the record sufficiently demonstrates that the mother was on public assistance, that she had been recently evicted from the apartment where she was living, and that she was unable to pay the amounts required by the child support order which had been entered, on her default, approximately six years earlier. Under these circumstances, the mother met her burden of establishing that she did not willfully violate the child support order. Accordingly, the Family Court should have denied the father's petition to adjudicate the mother in willful violation of the prior child support order ( see Yeager v. Yeager, 38 A.D.3d at 535, 831 N.Y.S.2d 496; Bisnoff v. Bisnoff, 27 A.D.3d 606, 607, 811 N.Y.S.2d 442).
In light of our determination, we need not address the mother's remaining contentions. SKELOS, J.P., BALKIN, LEVENTHAL and SGROI, JJ., concur.