Opinion
409 CAF 22-00543
06-30-2023
In the Matter of Dequoya C. KELLY, Petitioner-Respondent, v. Renaldo J. NAPIER, Respondent-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 4, respondent appeals from an order confirming the order of the Support Magistrate, which, inter alia, determined that he had willfully violated a prior order of child support. We affirm.
Initially, respondent failed to preserve for our review his contention that the Support Magistrate erred in admitting into evidence uncertified documents submitted by petitioner because respondent did not raise that contention in his written objection to the Support Magistrate's order (see Matter of Foley v. Dwyer , 192 A.D.3d 1652, 1653, 141 N.Y.S.3d 383 [4th Dept. 2021], lv denied 37 N.Y.3d 907, 2021 WL 4163791 [2021] ; Matter of White v. Knapp , 66 A.D.3d 1358, 1359, 886 N.Y.S.2d 527 [4th Dept. 2009] ; see generally Family Ct Act § 439 [e] ).
Contrary to respondent's contention, Family Court did not err in confirming the Support Magistrate's determination that respondent willfully violated the prior child support order. Parents are presumed to have sufficient means to support their minor child (see Family Ct Act § 437 ; Matter of Monroe County Child Support Enforcement Unit v. Hemminger , 186 A.D.3d 1093, 1093, 127 N.Y.S.3d 381 [4th Dept. 2020] ; Matter of Wayne County Dept. of Social Servs. v. Loren , 159 A.D.3d 1504, 1504-1505, 70 N.Y.S.3d 151 [4th Dept. 2018] ). Thus, evidence that a respondent has failed to pay child support as ordered constitutes "prima facie evidence of a willful violation" ( Matter of Movsovich v. Wood , 178 A.D.3d 1441, 1441, 112 N.Y.S.3d 660 [4th Dept. 2019], lv denied 35 N.Y.3d 905, 2020 WL 3056327 [2020] [internal quotation marks omitted]; see § 454 [3] [a]).
Here, petitioner established that respondent failed to pay the amount directed in the prior order, and the burden thus shifted to respondent to submit "some competent, credible evidence of his 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 [1995] ; see Matter of Jelks v. Wright , 96 A.D.3d 1488, 1489, 947 N.Y.S.2d 694 [4th Dept. 2012] ). Respondent failed to meet that burden inasmuch as he failed to present evidence establishing that he made reasonable efforts to obtain gainful employment to meet his support obligation (see Matter of Roshia v. Thiel , 110 A.D.3d 1490, 1492, 972 N.Y.S.2d 804 [4th Dept. 2013], lv dismissed in part & denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 [2013] ; Matter of Hunt v. Hunt , 30 A.D.3d 1065, 1065, 815 N.Y.S.2d 866 [4th Dept. 2006] ). Additionally, we note that the Support Magistrate was "in the best position to assess the credibility of the witnesses and the evidence proffered," and properly found that respondent was not credible and failed to demonstrate his inability to pay child support ( Matter of Manocchio v. Manocchio , 16 A.D.3d 1126, 1128, 792 N.Y.S.2d 279 [4th Dept. 2005] [internal quotation marks omitted]). We perceive no basis to disturb the Support Magistrate's determination in that regard (see generally Matter of Natali v. Natali , 30 A.D.3d 1010, 1012, 815 N.Y.S.2d 841 [4th Dept. 2006] ).
Finally, we note that the order and conditions of probation contains a clerical error that must be corrected—i.e., it inaccurately states that respondent was placed on probation for a period of 24 months. The order on appeal, however, imposed only a one-year term of probation. The order and conditions of probation must therefore be amended to correctly reflect that the court placed respondent on probation for a period of a year.