| Matter of Lewis v Cross |
| 2010 NY Slip Op 02887 [72 AD3d 1228] |
| April 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tracy N. Lewis, Respondent, v Diana C. Cross,Appellant. |
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Stein, J. Appeals (1) from an order of the Family Court of Ulster County (McGinty, J.),entered February 25, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, to hold respondent in willful violation of a prior order of support, and (2)from an order of said court, entered February 25, 2009, which committed respondent to theUlster County Jail for a period of 45 days.
In March 2008, petitioner (hereinafter the father) filed a petition against respondent(hereinafter the mother) seeking an order of child support for their two children. After the motherfailed to appear in response to the petition, a Support Magistrate issued a default order of supportin June 2008 setting the mother's share of the basic child support at $100 weekly. Ultimately,after subsequent petitions filed by the parties were determined by the SupportMagistrate,[FN1]the father filed the instant violation petition. A hearing was held before a Support [*2]Magistrate, who determined that the mother was in willful violationof the June 2008 order of support and recommended a 90-day period of incarceration if themother failed to make timely future payments, but that no sanction should be applied if themother could supply satisfactory medical proof of her alleged inability to work due to a medicalcondition. The Support Magistrate then referred the matter to Family Court for confirmation inaccordance with Family Ct Act § 439 (a). After holding a confirmation hearing, FamilyCourt found the mother to be in willful violation of the order of support and committed her to jailfor a period of 45 days. The mother now appeals the finding of willfulness and the order ofcommitment.
Inasmuch as the mother has fully served the term of incarceration imposed, her appeal fromthe order of commitment is dismissed as moot (see Matter of Lind v Sepulveda, 66 AD3d 1087, 1087 [2009]).Furthermore, we disagree with the mother's contention that the finding of willfulness wasimproper. In order to establish a prima facie case of willful violation, the father had the initialburden of coming forward with evidence that the mother had failed to obey a lawful order ofsupport (see Family Ct Act § 454 [3] [a]; Matter of Armstrong v Belrose, 9 AD3d 625, 626 [2004];Matter of Delaware County Dept. of Social Servs. v Brooker, 272 AD2d 835, 836[2000]). Here, a representative of the Ulster County Child Support Enforcement Unit providedunrefuted testimony at the hearings before the Support Magistrate and Family Court that thechild support arrears exceeded $6,000. This testimony, together with the court's own records,including the initial order of support—of which the court was permitted to take judicialnotice (see People v Byrd, 57AD3d 442, 443 [2008], lv dismissed and denied 12 NY3d 795 [2009]; Musick v 330 Wythe Ave. Assoc.,LLC, 41 AD3d 675, 676 [2007]; Rothstein v City Univ. of N.Y., 194 AD2d533, 535 [1993])—established the father's direct case and shifted the burden to the motherto demonstrate her inability to make the required payments (see Matter of Powers vPowers, 86 NY2d 63, 69 [1995]).
In that regard, the mother testified that her medical condition prevented her from workingand, thus, paying child support. Although she supplied some medical documentation thatindicated, among other things, that she had "mild tendonosis" and "minimal bulging of the disk,"causing her discomfort, the medical reports gave no indication that such conditions affected herability to work (see Matter ofSutton-Murley v O'Connor, 61 AD3d 1054, 1055 [2009]; Matter of Nickerson vBellinger, 258 AD2d 688, 689 [1999]). Furthermore, while the mother presented multipleaccounts of her alleged attempts at finding employment and excuses for failing to succeedthereat, she never alleged that she was completely unable to work.[FN2]According deference to Family Court's credibility assessments (see Matter of Vickery v Vickery, 63AD3d 1220, 1221 [2009]), we find no reason to disturb its determination that the motherfailed to demonstrate her inability to comply with the child support order.
Nor do we find merit to the mother's contention that she was denied the effective assistanceof counsel. Our review of the record reveals that she was provided with meaningfulrepresentation throughout the proceedings—even when she failed to appear. The motherhas not established that the claimed deficiencies were not attributable to legitimate trial tactics orthat they rise to a constitutional dimension (see Matter of Gerald BB., 51 AD3d 1081, 1083 [2008], lvdenied 11 NY3d 703 [2008]; Matter of Amanda M., 28 AD3d 813, 815 [2006]).[*3]
We have considered the mother's remaining contentionsand find them to be unavailing.
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order entered February25, 2009 finding that respondent willfully violated a prior order of support is affirmed, withoutcosts. Ordered that the appeal from the order entered February 25, 2009 committing respondentto jail is dismissed, as moot.
Footnote 1: Such petitions included aviolation petition filed by the father and several modification petitions filed by the mother. Theywere concluded either on consent or based on the mother's failure to either appear or proceed,with the exception of two of the mother's modification petitions, which were dismissed withoutprejudice as facially insufficient. There is no evidence in the record before us that any of thepertinent court orders were appealed.
Footnote 2: Notably, there is no recordevidence that the mother made a single child support payment.