| Matter of Christine L.M. v Wlodek K. |
| 2007 NY Slip Op 09276 [45 AD3d 1452] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Christine L.M., Respondent, v Wlodek K.,Appellant. (Appeal No. 2.) |
—[*1] Christine L.M., petitioner-respondent pro se.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), enteredMay 18, 2006 in a proceeding pursuant to Family Court Act article 4. The order, among otherthings, adjudged that respondent willfully failed to obey an order of support and sentenced him tothree weeks in jail.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Respondent appeals from an order finding that he willfully violated a priororder of child and spousal support and sentencing him to three weeks in jail. Although his appealis not moot merely because he has served his sentence (see Matter of Bickwid v Deutsch,87 NY2d 862, 863 [1995]; Matter ofMoore v Blank, 8 AD3d 1090, 1091 [2004], lv denied 3 NY3d 606 [2004]), wenevertheless conclude that it lacks merit. Based on the evidence before the Support Magistrate,we conclude that Family Court properly confirmed the finding that respondent willfully violatedthe prior order of support (see Matter ofHunt v Hunt, 30 AD3d 1065 [2006]; Matter of Rothfuss v Thomas, 6 AD3d 1145, 1146 [2004], lvdenied 3 NY3d 603 [2004]). There is a presumption that a respondent has sufficient means tosupport his or her spouse and minor children (see Family Ct Act § 437; Matterof Powers v Powers, 86 NY2d 63, 68-69 [1995]; Hunt, 30 AD3d at 1065), and theevidence that respondent failed to pay support as ordered constitutes "prima facie evidence of awillful violation" (Family Ct Act § 454 [3] [a]). The burden then shifted to respondent toadduce "some competent, credible evidence of his inability to make the required payments"(Powers, 86 NY2d at 70; see Hunt, 30 AD3d at 1065), but he failed to meet thatburden inasmuch as he failed to present evidence establishing that he made "reasonable efforts toobtain gainful employment to meet his . . . support obligations" (Matter ofFallon v Fallon, 286 AD2d 389 [2001]; see Hunt, 30 AD3d at 1065).Present—Gorski, J.P., Smith, Centra, Lunn and Peradotto, JJ.