Opinion
2018–01753 Docket No. F–16173–11/17M
01-09-2019
In the Matter of Elizabeth GRILL, Respondent, v. Christian GENITRINI, Appellant.
John F. De Chiaro, Larchmont, NY, for appellant.
John F. De Chiaro, Larchmont, NY, for appellant.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDERORDERED that the order dated January 18, 2018, is affirmed insofar as appealed from, without costs or disbursements.
The parties were married in 2001 and have two children together. They were divorced by a judgment of divorce dated October 6, 2010. In an order dated August 31, 2016, the father was directed to pay $2,800 per month in child support.
In January 2017, the mother commenced this proceeding pursuant to Family Court Act article 4, alleging that the father willfully failed to comply with his child support obligation. On July 11, 2017, a hearing was held on the mother's violation petition, at which the father failed to appear. The father's assigned counsel appeared at the hearing and requested leave for the father to appear telephonically from an undisclosed location. Additionally, the father's counsel, who indicated that he was authorized to make arguments on behalf of the father, orally moved to dismiss the violation petition on the ground that the father was not properly served with the summons and petition. The Support Magistrate denied both applications. Following the hearing, the Support Magistrate issued an order dated July 13, 2017, which, among other things, found that the father willfully violated the prior order of child support. The father filed objections to the Support Magistrate's order. In an order dated January 18, 2018, the Family Court denied the father's objections and, in effect, confirmed the Support Magistrate's finding that he was in willful violation of the child support order.
The father contends that the Family Court erred in permitting substituted service of the summons and petition upon him in the absence of reasonable efforts by the mother to serve him by personal delivery. Service of a summons and petition in a proceeding alleging a violation of an order of support is to be made pursuant to the provisions of Family Court Act § 427 (see Matter of Semenova v. Semenov, 85 A.D.3d 1036, 1038, 925 N.Y.S.2d 872 ). "Service by means other than the means prescribed in Family Court Act § 427 is permissible, but only after ‘reasonable effort[s]’ to effect personal service have been made and then only pursuant to a court order ‘providing for substituted service in the manner provided for substituted service in the [CPLR]’ " ( Matter of Semenova v. Semenov, 85 A.D.3d at 1038, 925 N.Y.S.2d 872, quoting Family Ct. Act § 427[b] ). Here, contrary to the father's contention, the record reflects that the mother made reasonable efforts to personally serve him, and the court providently exercised its discretion in directing substituted service.
Furthermore, under the circumstances of this case, the Support Magistrate providently exercised her discretion in denying the father's application for leave to appear telephonically at the hearing (see Matter of Labella v. Murray, 139 A.D.3d 857, 858, 29 N.Y.S.3d 821 ; Matter of Kalantarov v. Kalantarova, 109 A.D.3d 471, 969 N.Y.S.2d 920 ).
"Failure to obey a lawful order of child support constitutes prima facie evidence of a willful violation" ( Matter of Root v. Root, 161 A.D.3d 1169, 1171, 77 N.Y.S.3d 483 ; see Family Ct. Act § 454[3][a] ). "Thus, proof that a respondent has failed to pay support as ordered establishes the petitioner's direct case of willful violation, shifting the burden to the respondent to offer competent, credible evidence of his or her inability to make the payments as ordered" ( Matter of Schad v. Schad, 158 A.D.3d 705, 706, 70 N.Y.S.3d 568 ; see Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Root v. Root, 161 A.D.3d at 1171, 77 N.Y.S.3d 483 ). Here, the mother established, prima facie, that the father failed to pay child support as ordered, and, in response, the father failed to offer any competent, credible evidence of his inability to make the required payments (see Matter of Brooks v. Brooks, 163 A.D.3d 554, 556, 81 N.Y.S.3d 98 ). Accordingly, the Family Court properly, in effect, confirmed the determination of the Support Magistrate that the father willfully violated the order of child support.
The father's remaining contentions are without merit.
BALKIN, J.P., CHAMBERS, ROMAN and HINDS–RADIX, JJ., concur.