| Matter of Vickery v Vickery |
| 2009 NY Slip Op 04321 [63 AD3d 1220] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kim Vickery, Respondent, v Brett Vickery,Appellant. |
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Cardona, P.J. Appeals (1) from an order of the Family Court of Ulster County (Mizel, J.),entered May 20, 2008, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a priororder of support, and (2) from an order of said court, entered May 20, 2008, which committedrespondent to the Ulster County Jail for a period of six months.
The parties herein are the parents of two sons (born in 1995 and 1999). In January 2008,petitioner commenced this proceeding alleging that respondent had violated an order of supportrequiring that he pay $234 biweekly in child support. At a hearing before a Support Magistrate,respondent admitted to being in arrears but claimed that, after unavoidably losing his job withthe United States Postal Service, he was unable to secure employment due primarily to hisdisabling back condition. The Support Magistrate found respondent in willful violation of thesupport order. Thereafter, following a hearing, Family Court confirmed the Support Magistrate'sfinding of willfulness, found respondent to be in arrears, and imposed a sentence of six monthsof incarceration—the terms of which would be suspended upon, among other things,payment in full of the child support arrears within a specified period.[FN*]Respondent appeals and we affirm.
Initially, to the extent respondent contends that the Support Magistrate improperly [*2]shifted the ultimate burden of proof, we note that any alleged errorwas "rendered thoroughly inconsequential by Family Court's own independent review of therecord" (Matter of Powers v Powers, 86 NY2d 63, 69 [1995]). With regard to the burdenof proof, respondent's acknowledgment that he failed to make the required child supportpayments since November 2007 constituted prima facie evidence of his willful violation of thesupport order (see id. at 69; Matter of Zepperi v Madera, 56 AD3d 988, 989 [2008]). Theburden then shifted to respondent to rebut the evidence of willfulness by "offer[ing] somecompetent, credible evidence of his inability to make the required payments" (Matter ofPowers v Powers, 86 NY2d at 69-70; see Matter of Holbert v Rifanburg, 39 AD3d 902, 903 [2007]).This respondent failed to do.
Although respondent claimed that his alleged debilitating back condition rendered himunable to obtain employment in order to meet his support obligations, he did not present anycompetent medical proof in support thereof (see Matter of Sutton-Murley v O'Connor, 61 AD3d 1054,1055-1056 [2009]; Matter of ColumbiaCounty Support Collection Unit v Demers, 29 AD3d 1092, 1093 [2006], lvdenied 7 NY3d 708 [2006]). Rather, Family Court found respondent's evidence on this issueto lack credibility, particularly given respondent's medical records revealing only intermittenttreatment over a 10-year period with no restrictions concerning employment. Family Court alsodid not find credible respondent's testimony regarding his diligent efforts to regain employmentfollowing his discharge for cause from the United States Postal Service. According deference toFamily Court's credibility assessments (see Matter of Sutton-Murley v O'Connor, 61AD3d at 1055-1056), we find no reason to disturb its determination that respondent failed topresent competent and credible proof of his inability to comply with the child support order.
Mercure, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: The record indicates thatrespondent paid the outstanding child support arrears and the commitment order wasconditionally suspended.