Opinion
2021-06251
11-12-2021
IN THE MATTER OF WYOMING COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF DORIS I. MURRAY, PETITIONER-RESPONDENT, v. HULBERT F. KATES, III, RESPONDENT-APPELLANT.
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT. JAMES M. WUJCIK, COUNTY ATTORNEY, ATTICA (JANET L. BENSMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
JAMES M. WUJCIK, COUNTY ATTORNEY, ATTICA (JANET L. BENSMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
Appeal from an order of the Family Court, Wyoming County (Michael M. Mohun, J.), entered December 2, 2019 in a proceeding pursuant to Family Court Act article 4. The order, inter alia, found that respondent had willfully violated a court order.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 4, respondent father appeals from an order that, inter alia, effectively confirmed the determination of the Support Magistrate that the father willfully violated a prior order of child support.
Because the father failed to submit written objections to the order of the Support Magistrate, his challenges to the determinations of the Support Magistrate are not properly preserved (see Family Ct Act § 439 [e]; see also Matter of Farruggia v Farruggia, 125 A.D.3d 1490, 1490 [4th Dept 2015]; Matter of White v Knapp, 66 A.D.3d 1358, 1359 [4th Dept 2009]). In any event, we reject the contention of the father that the Support Magistrate erred in imputing income to him for the purpose of calculating his child support obligation. It is well settled that a support magistrate has" 'considerable discretion to... impute an annual income to a parent'" (Lauzonis v Lauzonis, 105 A.D.3d 1351, 1351 [4th Dept 2013]; see Matter of Bashir v Brunner, 169 A.D.3d 1382, 1383 [4th Dept 2019]). Furthermore, "[c]hild support is determined by the parents' ability to provide for their child rather than their current economic situation" (Irene v Irene [appeal No. 2], 41 A.D.3d 1179, 1180 [4th Dept 2007] [internal quotation marks omitted]; see Bashir, 169 A.D.3d at 1383), and a support magistrate's imputation of income will not be disturbed where, as here, there is record support for that determination (see Matter of Rapp v Horbett, 174 A.D.3d 1315, 1317-1318 [4th Dept 2019]; see also Matter of Drake v Drake, 185 A.D.3d 1382, 1383 [4th Dept 2020], lv denied 36 N.Y.3d 909 [2021]). Contrary to the father's further contention, the Support Magistrate did not demonstrate any bias by imputing income to the father, and the Support Magistrate did not interfere with the presentation of the father's case or indicate any partiality or bias that would warrant reversal or modification of the order on appeal (see Matter of Deshotel v Mandile, 151 A.D.3d 1811, 1812-1813 [4th Dept 2018]; Matter of Cadle v Hill, 23 A.D.3d 652, 653 [2d Dept 2005]).
We reject the father's contention that petitioner failed to establish that he willfully violated the order of support. "A failure to pay support as ordered itself constitutes prima facie evidence of a willful violation... [and] establishes [the] petitioner's direct case of willful violation, shifting to [the] respondent the burden of going forward... To meet that burden, the respondent must offer some competent, credible evidence of his [or her] inability to make the required payments" (Matter of Yamonaco v Fey, 91 A.D.3d 1322, 1323 [4th Dept 2012], lv denied 19 N.Y.3d 803 [2012] [internal quotation marks omitted]; see Matter of Wayne County Dept. of Social Servs. v Loren, 159 A.D.3d 1504, 1505 [4th Dept 2018]). Here, contrary to the father's contention, he failed to submit competent medical evidence to substantiate his claim that he was unable to work because of a disability (see Loren, 159 A.D.3d at 1505; Matter of Hwang v Tam, 158 A.D.3d 1216, 1217 [4th Dept 2018]).
Finally, we conclude that the father failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" (Matter of Reinhardt v Hardison, 122 A.D.3d 1448, 1449 [4th Dept 2014] [internal quotation marks omitted]; see Matter of Kelley v Holmes, 151 A.D.3d 1704, 1705 [4th Dept 2017], lv denied 30 N.Y.3d 904 [2017]). We therefore reject his contention that he was deprived of effective assistance of counsel.