Opinion
13101 Dkt. No. F-23472-18/19D Case No. 2020-01751
02-11-2021
In the Matter of SASHA R., Petitioner–Respondent, v. MARCUS L., Respondent–Appellant.
Andrew J. Baer, New York, for appellant. Kramer Levin Naftalis & Frankel LLP, New York (Reyhan A. Watson of counsel), for respondent.
Andrew J. Baer, New York, for appellant.
Kramer Levin Naftalis & Frankel LLP, New York (Reyhan A. Watson of counsel), for respondent.
Acosta, P.J., Kapnick, Singh, Mendez, JJ.
Order, Family Court, Bronx County (Phaedra F. Perry, J.), entered on or about January 22, 2020, which, upon a finding that respondent father willfully violated a court order mandating child support payments, committed him to the New York City Department of Correction for a period of six months unless discharged by a purge payment of $7,500, unanimously affirmed, without costs.
The court properly confirmed the Support Magistrate's finding that respondent willfully violated the support order. Failure to pay support, as ordered, constituted prima facie evidence of a willful violation (see Family Ct Act § 454[3][a] ). The burden then shifted to respondent to present "some competent, credible evidence of his inability to make the required payments" ( Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ). However, he failed to present evidence establishing that he made reasonable efforts to obtain gainful employment when he was unemployed or marginally employed (see Matter of Jennifer D. v. Artise C.J., 154 A.D.3d 578, 62 N.Y.S.3d 346 [1st Dept. 2017] ). The father also admitted that he did not intend to pay child support (see Cordova v. Cordova, 63 A.D.3d 982, 883 N.Y.S.2d 237 [2d Dept. 2009] ), and provided no documentary support of his inability to pay such support ( Matter of Virginia S. v. Thomas S., 58 A.D.3d 441, 442, 870 N.Y.S.2d 322 [1st Dept. 2009] ; cf. Matter of John T. v. Olethea P., 64 A.D.3d 484, 883 N.Y.S.2d 38 [1st Dept. 2009] ). The Support Magistrate, who was in the best position to evaluate his credibility, found that respondent's testimony about his job search was vague about the frequency and locations of his search for work. We find no basis for disturbing the Support Magistrate's credibility determinations (see Matter of Bruce L. v. Patricia C., 62 A.D.3d 566, 567, 880 N.Y.S.2d 253 [1st Dept. 2009], lv denied 12 N.Y.3d 715, 912 N.E.2d 1072 [2009] ).
The court providently exercised its discretion in ordering either six months of incarceration or a purge payment of $7,500 (see Matter of Nancy R. v. Anthony B., 121 A.D.3d 555, 995 N.Y.S.2d 18 [1st Dept. 2014] ).
We have considered respondent's remaining arguments and find them unavailing.