Opinion
1058 CAF 16–02214
11-09-2018
In the Matter of Mark A. MANDILE, Petitioner–Respondent, v. Katrina V. DESHOTEL, Respondent–appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, confirmed the determination of the Support Magistrate that she willfully violated a prior child support order and awarded petitioner father a judgment for child support arrears. Contrary to the mother's contention, Family Court properly confirmed the finding of the Support Magistrate that she willfully violated the support order. "The [mother] is presumed to have sufficient means to support [her] child (see Family Ct Act § 437 ), and [her] failure to pay support constitutes ‘prima facie evidence of a willful violation’ " ( Matter of Huard v. Lugo, 81 A.D.3d 1265, 1267, 917 N.Y.S.2d 459 [4th Dept. 2011], lv denied 16 N.Y.3d 710, 2011 WL 1584768 [2011], quoting § 454[3][a]; see Matter of Barksdale v. Gore, 101 A.D.3d 1742, 1742, 955 N.Y.S.2d 912 [4th Dept. 2012] ). "Thus, proof that [a] respondent has failed to pay support as ordered alone establishes [a] petitioner's direct case of willful violation, shifting to [the] respondent the burden of going forward" ( Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ).
Here, it is undisputed that the mother failed to pay the amounts directed by the support order, and the burden thus shifted to her to submit "some competent, credible evidence of [her] inability to make the required payments" ( id. at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; see Barksdale, 101 A.D.3d at 1742–1743, 955 N.Y.S.2d 912 ). The mother failed to meet that burden. Although the mother presented some evidence of medical conditions that allegedly disabled her from work, her medical records indicate that the diagnoses related to those conditions were "based solely on [the mother's] subjective complaints, rather than any objective testing" ( Matter of Straight v. Skinner, 33 A.D.3d 1175, 1176, 823 N.Y.S.2d 277 [3d Dept. 2006] ; see Matter of St. Lawrence County Support Collection Unit v. Laneuville, 101 A.D.3d 1199, 1200, 955 N.Y.S.2d 284 [3d Dept. 2012] ).
Moreover, the Support Magistrate noted that the mother did not seek treatment for her alleged conditions until shortly after the father filed his first violation petition and that she had testified several years earlier that she did not intend to work because she could be fully supported by her paramour. According deference to the Support Magistrate's credibility assessments (see Matter of Yamonaco v. Fey, 91 A.D.3d 1322, 1323, 937 N.Y.S.2d 787 [4th Dept. 2012], lv denied 19 N.Y.3d 803, 2012 WL 1538619 [2012] ), we find no reason to disturb his determination that the mother failed to demonstrate her inability to comply with the child support order.
We reject the mother's further contention that the court erred in refusing to cap her unpaid child support arrears at $500. It is true that "[w]here the sole source of a noncustodial parent's income is public assistance, ‘unpaid child support arrears in excess of five hundred dollars shall not accrue’ " ( Matter of Edwards v. Johnson, 233 A.D.2d 884, 885, 649 N.Y.S.2d 618 [4th Dept. 1996], quoting Family Ct Act § 413[1][g] ). As noted above, although the mother received public assistance and did not maintain employment, circumstantial evidence suggested that she "ha[d] access to, and receive[d], financial support from [her live-in paramour]" ( Matter of Rohme v. Burns, 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 [2d Dept. 2012] ; see Matter of Deshotel v. Mandile, 151 A.D.3d 1811, 1812, 59 N.Y.S.3d 209 [4th Dept. 2017] ). Inasmuch as " ‘[a] court need not rely upon a party's own account of his or her finances, but may impute income ... to a party based on ... money received from friends and relatives’ " ( Deshotel, 151 A.D.3d at 1811–1812, 59 N.Y.S.3d 209 ), we conclude that the court did not err in denying the mother's motion to cap her arrears at $500 (cf. Edwards, 233 A.D.2d at 885, 649 N.Y.S.2d 618 ). We have considered the mother's remaining contention and conclude that it is without merit.