| Matter of Broome County Support Collection Unit v Corey |
| 2007 NY Slip Op 07791 [44 AD3d 1128] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Broome County Support Collection Unit, on Behalfof Penny Gerst, Respondent, v Bruce Corey, Appellant. (And Another RelatedProceeding.) |
—[*1] Penny Gerst, Binghamton, respondent pro se.
Mercure, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered October 20, 2006, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 4, to hold respondent in violation of a prior supportorder.
Respondent and Penny Gerst are the parents of a daughter, born in 1989. In February 2005,the parties stipulated that respondent's child support obligation would be $40 per week. In May2006, petitioner commenced the first of these proceedings, alleging that respondent had failed topay child support and indicating that the current amount due to Gerst, with arrears, wasapproximately $4,900. Respondent commenced the second proceeding, requesting a downwardmodification of support. A Support Magistrate conducted a joint fact-finding hearing on thepetitions and, by order of disposition, found respondent to be in willful violation of the priorsupport order, established arrears in the amount of approximately $5,300, and dismissedrespondent's modification petition. Family Court subsequently confirmed the finding of a willfulviolation and the dismissal of the modification petition. Thereafter, in December 2006, the courtdirected respondent to pay $10 per week toward arrears in addition to his child support payments,and sentenced respondent to six months in jail. The sentence was suspended, however, on the[*2]condition that respondent remain current in the supportpayments imposed by the parties' stipulation. Respondent now appeals, asserting that FamilyCourt erred in upholding the Support Magistrate's finding of a willful violation of the prior order.We disagree.
The undisputed evidence of respondent's failure to comply with his support obligationestablished a "direct case of willful violation, shifting to respondent the burden . . .to offer some competent, credible evidence of his inability to make the required payments"(Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]; see Matter of Kelly v Schoonbeck, 34AD3d 1094, 1095 [2006]). Respondent asserts that he met this burden through his testimonythat after his release from a jail term imposed upon a prior finding of a willful violation, heengaged in meaningful efforts to find gainful employment, but was unable to secure a job untilapproximately two weeks prior to the fact-finding hearing, when he obtained a position with alimousine service. This testimony was countered by Gerst, who explained that respondent has atrack record of finding work just before hearings on his support violations, in an attempt to avoidincarceration. Both Family Court and the Support Magistrate further noted that althoughrespondent claims to be indigent, he took the child shopping for her birthday shortly before thehearing. Under these circumstances and according deference to the Support Magistrate'sassessment of witness credibility, we conclude that respondent failed to meet his burden ofdemonstrating his inability to meet his support obligations and, thus, the finding of a willfulviolation was warranted (see Matter of Kelly v Schoonbeck, 34 AD3d at 1095; Matter of Heyn v Burr, 19 AD3d896, 898 [2005]; Matter of Bouchard v Bouchard, 263 AD2d 775, 776-777 [1999]).
We similarly reject respondent's arguments regarding the dismissal of his modificationpetition.[FN*]As noted by the Support Magistrate, respondent presented no proof of any mental or physicallimitation that would prevent him from earning the $150 weekly salary upon which his supportobligation is based. Nor, given his employment history, has he made the required showing of anunexpected and unreasonable change in circumstances that would warrant modification (seeMatter of Kelly v Schoonbeck, 34 AD3d at 1095-1096; Matter of Bouchard vBouchard, 263 AD2d at 777-778).
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Respondent's assertion thatFamily Court failed to address his objection to the denial of his request for modification islacking in merit. The court noted that respondent had filed written objections, concluded that he"failed to sustain his burden of proof" on the modification petition, and denied his objections.