Opinion
1548 CAF 16–02234
03-16-2018
In the Matter of WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF Marguerite JACKSON, Petitioner–Respondent, v. Lisa LOREN, Respondent–Appellant.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–APPELLANT. ELIZA HEATON, LYONS, FOR PETITIONER–RESPONDENT.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–APPELLANT.
ELIZA HEATON, LYONS, FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Respondent mother appeals from an order denying her objections to the order of the Support Magistrate, which, inter alia, determined that the mother willfully violated a prior order of child support and denied her motion to cap her unpaid child support arrears at $500 pursuant to Family Court Act § 413(1)(g).
We reject the mother's contention that petitioner failed to establish that she willfully violated the order of support. There is a statutory presumption that a respondent has sufficient means to support his or her minor children (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] ), and petitioner presented evidence that the mother failed to pay child support as ordered, which constitutes " ‘prima facie evidence of a willful violation’ " ( Matter of Roshia v. Thiel, 110 A.D.3d 1490, 1492, 972 N.Y.S.2d 804 [4th Dept. 2013], lv dismissed in part and denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 [2013], quoting § 454[3][a] ). The burden then shifted to the mother to present "some competent, credible evidence of [her] inability to make the required payments" ( Powers, 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). The mother failed to meet that burden because she "failed to present evidence that [she] made ‘reasonable efforts to obtain gainful employment’ " ( Matter of Christine L.M. v. Wlodek K., 45 A.D.3d 1452, 1452, 846 N.Y.S.2d 849 [4th Dept. 2007] ). The mother testified that her only sources of income were food stamps and Medicaid benefits, and that she could not work as a result of a medical disability. The Support Magistrate, however, found that the mother's explanation was "totally lacking in credibility." The Support Magistrate was in the best position to evaluate the mother's credibility, and her determination is entitled to great deference (see Matter of Kasprowicz v. Osgood, 101 A.D.3d 1760, 1761, 956 N.Y.S.2d 786 [4th Dept. 2012], lv. denied 20 N.Y.3d 863, 2013 WL 1235503 [2013] ). Furthermore, the record establishes that the mother failed to submit competent medical evidence to substantiate her claim that she was unable to work because of a disability (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, 946 N.Y.S.2d 105, 969 N.E.2d 222 [2012] ; Matter of Wilson v. LaMountain, 83 A.D.3d 1154, 1156, 921 N.Y.S.2d 362 [3d Dept. 2011] ; Matter of Gray v. Gray, 52 A.D.3d 1287, 1288, 859 N.Y.S.2d 785 [4th Dept. 2008], lv denied 11 N.Y.3d 706, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008] ).
Contrary to the mother's further contention, Family Court properly denied her objections to the Support Magistrate's order insofar as it denied her motion to cap her unpaid child support arrears at $500 pursuant to Family Court Act § 413(1)(g) (see Roshia, 110 A.D.3d at 1492, 972 N.Y.S.2d 804 ; Matter of Sutkowy v. J.B., 196 Misc.2d 1005, 1008–1009, 763 N.Y.S.2d 920 [Fam. Ct., Onondaga County 2003] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.