| Matter of Mitchell v Rockhill |
| 2007 NY Slip Op 09162 [45 AD3d 1140] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of Karrie L. Mitchell, Respondent, v Ronald Rockhill,Jr., Appellant. |
—[*1] Thomas G. Soucia, Franklin County Department of Social Services, Malone, forrespondent.
Kane, J. Appeal from an order of the Family Court of Franklin County (Main, Jr., J.), enteredJanuary 19, 2007, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 4, to hold respondent in willful violation of a prior order of support and committedrespondent to the Franklin County Jail for a term of 180 days.
Pursuant to a March 3, 2004 order of Family Court, respondent was directed to pay petitionerchild support in the amount of $35 per week, as well as $15 per week on arrears due, through theFranklin County Department of Social Services. Respondent only made sporadic payments on theorder and ceased payments entirely in March 2006, prompting the instant violation proceeding.At a hearing before a Support Magistrate, respondent testified that he was employed part time asa day-care provider for his sister, for which he was paid approximately $150 a week by FranklinCounty. Respondent admitted that he had failed to make the support payments, but he claimedthat he could not afford to pay his other monthly bills and child support on his income.
The Support Magistrate found respondent in willful violation of the support order andawarded petitioner $3,190 in arrears. Family Court confirmed the Support Magistrate's order andimposed a sentence of 180 days of incarceration, prompting this appeal. We affirm.[*2]
Petitioner presented prima facie evidence of respondent'swillful violation of the support order through proof that he failed to pay support since March2006, which shifted the burden to respondent to present credible evidence of his inability to meethis support obligation (see Matter ofNauman v Rice, 40 AD3d 1159, 1160 [2007]; Matter of Holbert v Rifanburg, 39 AD3d 902, 903 [2007]).Respondent did not demonstrate an inability to pay child support. Respondent was employed parttime during this time and chose not to apply any of his weekly earnings to child support, claimingthat his income was insufficient to meet his obligations. Respondent, by only applying for onejob in the previous seven months, failed to make a good-faith effort to find full-time employmentor other employment to supplement his income. Therefore, a finding that he was able to meet hissupport obligations, despite an insufficient income, was justified (see Matter of Nauman vRice, 40 AD3d at 1160). Finally, as Family Court may, in its discretion, commit a personfound to have willfully violated a support order to a jail term not to exceed six months(see Family Ct Act § 454 [3] [a]), we find that the imposition of 180 days ofincarceration was not improper (seeMatter of Armstrong v Belrose, 9 AD3d 625, 626-627 [2004]).
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.