Opinion
CAF 03-00891.
Decided June 14, 2004.
Appeal from an order of the Family Court, Ontario County (James R. Harvey, J.), entered April 8, 2003. The order denied the objections of respondent to an order of the Hearing Examiner finding him in willful violation of a child support order and committing him to jail for a term of six months.
BONNIE BURGIO, WATERTOWN, FOR RESPONDENT-APPELLANT.
Before: PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order denying his objections to an order of the Hearing Examiner finding him in willful violation of a child support order and committing him to jail for a term of six months. As a preliminary matter, we note that the appeal is not moot merely because respondent has served his sentence ( see Matter of Bickwid v. Deutsch, 87 N.Y.2d 862, 863; Matter of France v. Buck, 299 A.D.2d 716; Michael N.G. v. Elsa R., 233 A.D.2d 264, 265). Because respondent failed to object to the Hearing Examiner's consideration of petitioner's certified calculation, any evidentiary error concerning that submission is not preserved for our review ( see Matter of Rush v. Rush, 201 A.D.2d 836, 837; Matter of Vetrano v. Calvey, 102 A.D.2d 932, 933; see generally Mashley v. Kerr, 47 N.Y.2d 892, 893; Stiglianese v. Vallone, 255 A.D.2d 167). The certified calculation was sufficient to establish petitioner's prima facie case of a willful violation ( see generally Matter of Powers v. Powers, 86 N.Y.2d 63, 68-69). Contrary to respondent's contention, Family Court did not err in confirming the Hearing Examiner's finding of a willful violation. The Hearing Examiner was in the best position to evaluate respondent's credibility ( see Matter of Hurd v. Hurd, 303 A.D.2d 928), and we conclude that the record supports the Hearing Examiner's determination that respondent failed to meet his burden of establishing that he made "reasonable efforts to obtain gainful employment to meet his child support obligations" ( Matter of Fallon v. Fallon, 286 A.D.2d 389, 389; see Matter of Bouchard v. Bouchard, 263 A.D.2d 775, 777; see generally Powers, 86 N.Y.2d at 69-70). Finally, we conclude that respondent received meaningful representation ( see Matter of Leslie v. Rodriguez, 303 A.D.2d 1016, 1017; Matter of Amanda L., 302 A.D.2d 1004; see generally People v. Benevento, 91 N.Y.2d 708, 713-714; People v. Baldi, 54 N.Y.2d 137, 147).