| Matter of Chamberlain v Chamberlain |
| 2010 NY Slip Op 00604 [69 AD3d 1249] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Susan M. Chamberlain, Respondent, v Dennis J.Chamberlain, Appellant. |
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Stein, J. Appeals from two orders of the Family Court of Delaware County (Becker, J.),entered January 23, 2009 and March 18, 2009, which 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 committed him to the custody of the Delaware County Sheriff for a term ofsix months.
The parties are the parents of a daughter (born in 1987), on whose behalf respondent(hereinafter the father) was obligated to pay support to petitioner (hereinafter the mother). In2006, an order of support fixed arrears at $63,748 and required the father to pay $500 per monthtowards the arrears. The mother commenced this proceeding in August 2008, alleging that thefather was in violation of the 2006 order. After a hearing, the Support Magistrate found thefather to be in willful violation of the order and recommended that he be incarcerated for hisnoncompliance. In addition, arrears were fixed at $60,248, the father was directed to pay $500on or before January 15, 2008 in addition to the regular monthly payments already required, andthe matter was referred for confirmation. Thereafter, Family Court held a confirmation hearingand, on January 23, 2009, issued a commitment for an intermittent term of incarceration (weeklyfrom Wednesday at 6:00 p.m. to Thursday at 6:00 p.m. for a six-month period or until paymentof the sum of $500, whichever occurred first) and confirmed the Support Magistrate'sdetermination of a willful violation. In March 2009, Family Court entered a separate orderconfirming the Support Magistrate's determination. The father now appeals from both theJanuary and March 2009 orders.[*2]
We affirm. Initially, we note that the father was affordedthe required hearing prior to Family Court's finding of a willful violation (see Matter of Columbia County SupportCollection Unit v Interdonato, 51 AD3d 1167, 1168 [2008]), as well as a confirmationhearing (see Family Ct Act §§ 439, 454). An employee of the supportcollection unit testified that the last payment received from the father was in December 2007 andthat he owed a total of $60,248. In addition, the mother testified that she had not received anypayments from the father since she filed her petition in August 2008. Such testimony"constitute[s] prima facie evidence of a willful violation" (Family Ct Act § 454 [3] [a]),shifting the burden to the father to demonstrate his inability to make the required payments(see Matter of Powers v Powers, 86 NY2d 63, 70 [1995]; Matter of Mitchell v Rockhill, 45AD3d 1140, 1141 [2007]).
The father testified that he has a limited education, no driver's license, and no home of hisown (he lived with his elderly mother, who received Social Security income), and he suffersfrom social anxiety disorder. He further testified that he had no assets and no job prospects.However, the father admitted that he was not registered with the New York State EmploymentService and did not receive disability assistance. Furthermore, although he earns cash doing oddjobs, he spends his earnings on tobacco and food. The father testified that he only made supportpayments when necessary to avoid incarceration and that such payments were made on hismother's credit card. Indeed, there is no evidence that the father ever made any other attempt,however minimal, to comply with the child support order, even when he had income.[FN*]Although not specifically referenced by Family Court, the father testified that, if he was certainthat he was the child's father, he would pay. In our view, according due deference to FamilyCourt's findings of fact and credibility determinations (see Matter of Scott v Scott, 50 AD3d 1193, 1194 [2008]), therecord supports the determination that the father was in willful violation of the support order andwe, therefore, decline to disturb it.
Nor do we find any impropriety in Family Court's decision to commit the father to a term ofincarceration (see Family Ct Act § 454 [3] [a]; Matter of Broome County Dept. of Social Servs. v Paine, 35 AD3d1111, 1112 [2006]). He failed to demonstrate his inability to make his required supportpayments through competent and credible evidence, and the testimony was sufficient to establishhis willful violation of the support order by clear and convincing evidence. Notwithstanding thefather's alleged mitigating circumstances, the term of incarceration imposed is well within thecourt's discretion upon its finding that he willfully failed to obey a lawful support order(see Family Ct Act § 454 [3] [a]; Matter of Armstrong v Belrose, 9 AD3d 625, 627 [2004]).
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote *: We also note the absence of anyindication in the record of an attempt by the father to modify the underlying support order.