Opinion
482 CAF 18-01579
08-20-2020
In the Matter of MONROE COUNTY CHILD SUPPORT ENFORCEMENT UNIT, ON BEHALF OF Lisa E. SPROUL, Petitioner-Respondent, v. Robert M. HEMMINGER, Respondent-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT-APPELLANT. JOHN P. BRINGWATT, COUNTY ATTORNEY, ROCHESTER (ELIZABETH D. TAFFE OF COUNSEL), FOR PETITIONER-RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT-APPELLANT.
JOHN P. BRINGWATT, COUNTY ATTORNEY, ROCHESTER (ELIZABETH D. TAFFE OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order denying his objections to the Support Magistrate's determination that he willfully violated a prior order of child support. We affirm. A parent is presumed to have sufficient means to support his or her minor child (see Family Ct. Act § 437 ; Matter of Powers v. Powers , 86 N.Y.2d 63, 68-69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ). "Thus, proof that respondent has failed to pay support as ordered alone establishes petitioner's direct case of willful violation, shifting to respondent the burden of going forward" ( Powers , 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; see 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] ). To meet that burden, the respondent must offer "some competent, credible evidence of his inability to make the required payments" ( Powers , 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). Moreover, if the respondent contends that he or she was unable to meet the support obligation because a physical disability interfered with his or her ability to maintain employment, the respondent must "offer competent medical evidence to substantiate" that claim and "establish that the alleged physical disability affected [his or] her ability to work" ( Matter of Hwang v. Tam , 158 A.D.3d 1216, 1217, 69 N.Y.S.3d 906 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Fogg v. Stoll , 26 A.D.3d 810, 810-811, 809 N.Y.S.2d 368 [4th Dept. 2006] ).
Here, petitioner made out a prima facie case by establishing that the father had not made certain payments required by the prior order, a claim the father did not dispute (see Matter of Riggs v. Vandusen , 78 A.D.3d 1577, 1577, 910 N.Y.S.2d 633 [4th Dept. 2010] ). The father failed to meet his burden of demonstrating his inability to make the required payments inasmuch as he failed to present evidence establishing that he made reasonable efforts to obtain gainful employment (see Matter of Movsovich v. Wood , 178 A.D.3d 1441, 1442, 112 N.Y.S.3d 660 [4th Dept. 2019], lv denied 35 N.Y.3d 905, 2020 WL 3056327 [2020] ). Further, although the father asserted that he was physically unable to perform certain work he had performed in the past and that he had been unable to obtain employment that was suitable in light of his alleged physical limitations, he failed to offer any medical evidence to substantiate his claim that his disability prevented him from making the required payments (see Movsovich , 178 A.D.3d at 1442, 112 N.Y.S.3d 660 ; see generally Matter of Mandile v. Deshotel , 166 A.D.3d 1511, 1512, 87 N.Y.S.3d 766 [4th Dept. 2018] ). Indeed, the record reflects that the father's claim for Social Security benefits was denied (cf. Hwang , 158 A.D.3d at 1217-1218, 69 N.Y.S.3d 906 ).