| Matter of Lewis v Cross |
| 2011 NY Slip Op 00069 [80 AD3d 835] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Tracy N. Lewis, Respondent, v Diana C. Cross,Appellant. |
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Malone Jr., J. Appeal from an order of the Family Court of Ulster County (McGinty, J.),entered March 10, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, to find respondent in willful violation of a prior order of support.
In June 2008, a default order was entered directing respondent (hereinafter the mother) to paypetitioner (hereinafter the father) weekly child support in the amount of $100 for the parties' twochildren. In February 2009, the mother was found to be in willful violation of that order and, atthat time, owed the father more than $6,000 in arrears (Matter of Lewis v Cross, 72 AD3d 1228 [2010]). In May 2009,with the father's consent, a Support Magistrate reduced the mother's weekly child supportobligation to $75. The father thereafter commenced the instant proceeding, alleging that themother was in willful violation of the May 2009 order of support. After a hearing, a SupportMagistrate found that the mother was in willful violation of that order, entered a judgment forarrears, plus costs and disbursements, and recommended that the mother serve six months in jail,unless she obtained employment and made support payments. After the matter was referred toFamily Court for confirmation (see Family Ct Act § 439 [a]), a confirmationhearing was held, following which Family Court found the mother to be in willful violation ofthe May 2009 order, entered judgment for an additional amount of arrears, plus costs anddisbursements, and ordered the mother committed to jail for 90 days. The mother appeals.
"In order to establish a prima facie case of willful violation, the father had the initial burdenof coming forward with evidence that the mother had failed to obey a lawful order of [*2]support" (Matter of Lewis v Cross, 72 AD3d at 1229[citations omitted]; see Family Ct Act § 454 [3] [a]). The father satisfied hisburden at the hearing before the Support Magistrate by presenting the unrefuted testimony of arepresentative from the Ulster County Child Support Collection Unit that the mother had notmade any payments on her account since the creation of it in June 2008. The representative alsotestified that the unit had issued wage garnishments to three of the mother'semployers—which she had not voluntarily disclosed to the unit—but did not receivepayments from them.[FN*]Additionally, the father testified that the mother had not made any payments directly to him. Theburden then shifted to the mother to offer some competent evidence "to demonstrate her inabilityto make the required payments" (Matter of Lewis v Cross, 72 AD3d at 1230; see Matter of Vickery v Vickery, 63AD3d 1220, 1221 [2009]).
To that end, the mother testified that she had been unable to secure steady employmentdespite having applied for several positions, but offered no admissible evidence to substantiateher efforts. Although she further claimed that she suffered from various physical and mentalailments, she did not produce sufficient competent medical proof of those conditions and, in anyevent, she did not allege that they precluded her from working (see Matter of Lewis vCross, 72 AD3d at 1230; Matter ofSutton-Murley v O'Connor, 61 AD3d 1054, 1055 [2009]). Family Court did not find themother's testimony to be credible and, according deference to that credibility assessment (seeMatter of Sutton-Murley v O'Connor, 61 AD3d at 1055-1056), we find no reason to disturbits determination that the mother was in willful violation of the order of support.
Finally, we are not persuaded by the mother's contention that she was denied the effectiveassistance of counsel. Viewed in the totality, the record reflects that the mother was affordedmeaningful representation throughout the proceeding and she has not established that any of thealleged deficiencies were anything other than legitimate, albeit losing, trial strategy (seeMatter of Lewis v Cross, 72 AD3d at 1230; Matter of Gerald BB., 51 AD3d 1081, 1082-1083 [2008], lvdenied 11 NY3d 703 [2008]).
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: By the time of the confirmationhearing before Family Court in March 2010, at least one payment—a wagegarnishment—had been made to the account in January 2010.