Opinion
1100 CAF 18–01884
11-15-2019
In the MATTER OF STEUBEN COUNTY SUPPORT Collection Unit, Steuben County Department of Social Services, on Behalf of Lucy Diaz, Petitioner-Respondent, v. John S. Cregan, Respondent-Appellant.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR RESPONDENT–APPELLANT. AMY C. KELLER, BATH, FOR PETITIONER–RESPONDENT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR RESPONDENT–APPELLANT.
AMY C. KELLER, BATH, FOR PETITIONER–RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal from the order insofar as it concerns commitment to jail is unanimously dismissed and the order is affirmed without costs.
Memorandum: Respondent appeals from an order, inter alia, confirming the determination of the Support Magistrate that he willfully violated an order of child support and committing him to jail for a period of four months. Contrary to respondent's contention, his undisputed failure to comply with the order of child support constituted prima facie evidence of a willful violation of that order (see Family Ct Act § 454[3][a] ; Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; Matter of Leslie v. Rodriguez, 303 A.D.2d 1016, 1016, 757 N.Y.S.2d 190 [4th Dept. 2003] ), and the burden therefore shifted to him to rebut that prima facie showing of willfulness (see Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). Respondent failed to meet that burden. At the hearing, respondent testified that he was not actively seeking the type of employment that would enable him to comply with the child support order. The ability to pay child support includes the ability to find employment, and respondent failed to show that he made a reasonable effort to find gainful employment (see Leslie, 303 A.D.2d at 1017, 757 N.Y.S.2d 190 ; Matter of Fallon v. Fallon, 286 A.D.2d 389, 389, 728 N.Y.S.2d 725 [2d Dept. 2001] ).
Finally, respondent's contention that a jail term was improperly imposed is moot because that part of the order with regard to the commitment has expired by its own terms (see Matter of Alex A.C. [Maria A.P.], 83 A.D.3d 1537, 1538, 921 N.Y.S.2d 759 [4th Dept. 2011] ; see generally Matter of Johnson v. Boone, 289 A.D.2d 938, 938, 734 N.Y.S.2d 523 [4th Dept. 2001] ). We therefore dismiss respondent's appeal from that part of the order (see Alex A.C., 83 A.D.3d at 1538, 921 N.Y.S.2d 759 ).