Opinion
2012-01-31
In the Matter of Carrie Jo YAMONACO, Petitioner–Respondent, v. Dennis FEY, Respondent–Appellant.
Charles J. Greenberg, Buffalo, for Respondent–Appellant.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
Respondent father appeals from an order confirming the Support Magistrate's determination that he willfully violated a prior order to pay child support with respect to the parties' child and sentencing him to a term of six months in jail. We affirm. It is well settled that a parent is presumed to be able to support his or her minor children ( see Family Ct. Act § 437; Matter of Christine L.M. v. Wlodek K., 45 A.D.3d 1452, 846 N.Y.S.2d 849). 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” ( Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154). To meet that burden, the respondent must “offer some competent, credible evidence of his [or her] inability to make the required payments” ( id. at 70–71, 629 N.Y.S.2d 984, 653 N.E.2d 1154). In the event that the respondent “testifie[s] that he [or she] was unable to meet [the] support obligation because physical [or mental] disabilities interfered with his [or her] ability to maintain employment, [the respondent must] offer competent medical evidence to substantiate that testimony” ( Matter of Fogg v. Stoll, 26 A.D.3d 810, 810–811, 809 N.Y.S.2d 368; see Matter of Greene v. Holmes, 31 A.D.3d 760, 762, 820 N.Y.S.2d 597). Such evidence must establish that the condition “affected [his or] her ability to work” ( Matter of Lewis v. Cross, 72 A.D.3d 1228, 1230, 897 N.Y.S.2d 783).
Great deference should be given to the determination of the Support Magistrate ( see Matter of Manocchio v. Manocchio, 16 A.D.3d 1126, 1128, 792 N.Y.S.2d 279). Here, petitioner mother established that the father willfully violated the prior order by demonstrating that the father had not made the required child support payments. The father failed to meet his burden to present sufficient evidence of his inability to make such payments, inasmuch as he failed to offer competent medical evidence to substantiate that claim.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.