| Matter of Scott v Scott |
| 2008 NY Slip Op 02921 [50 AD3d 1193] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Teresa Scott, Respondent, v Michael A. Scott,Appellant. |
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Lahtinen, J. Appeal from an order of the Family Court of Otsego County (Coccoma, J.),entered December 15, 2006, 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.
Following a hearing, a Support Magistrate determined in February 2006 that respondent hadwillfully violated a prior order of child support and recommended that Family Court impose asuspended sentence requiring a payment of $2,800 by respondent on or before June 1, 2006 toavoid being sent to jail. While the issue of whether the Support Magistrate's findings andrecommendations should be confirmed in whole or in part was pending before Family Court(see Family Ct Act § 439 [a]; 22 NYCRR 205.43 [i]), respondent was seriouslyinjured in a farm accident resulting in extended hospitalization and the necessity of a smallintestine transplant. Family Court thereafter confirmed the finding of a willful violation, but didnot impose the recommended sanction or any of the other sanctions authorized upon a finding ofa willful violation (see Family Ct Act § 454 [3]). Respondent appeals.
Respondent argues that he was not afforded an opportunity to establish that he did not havethe ability to pay. "The undisputed evidence of respondent's failure to comply with his supportobligation established a 'direct case of willful violation, shifting to respondent the burden. . . to offer some competent, credible evidence of his inability to make the requiredpayments' " (Matter of Broome CountySupport Collection Unit v Corey, 44 AD3d 1128, 1129 [2007], quoting Matter ofPowers v Powers, 86 NY2d 63, 69-70 [1995]). At the time of the hearing before the SupportMagistrate, respondent stated that he was unable to keep a job because of posttraumatic stressdisorder. The Support Magistrate found this explanation unconvincing and [*2]held that respondent had failed to make a good faith effort to findand maintain employment. According deference to the Support Magistrate's credibilitydeterminations (see Matter of Yarinskyv Yarinsky, 36 AD3d 1135, 1140 [2007]; Matter of Holscher v Holscher, 4 AD3d 629, 630 [2004], lvdenied 3 NY3d 606 [2004]), the record supports the finding of a willful violation (see Matter of Moore v Blank, 8 AD3d1090, 1091 [2004], lv denied 3 NY3d 606 [2004]). Family Court's decision not toimpose a sanction for the willful violation reflects the reality of the tragic events that havebefallen respondent since the time of the hearing.
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.