| Matter of Michelle F.F. v Edward J.F. |
| 2008 NY Slip Op 03094 [50 AD3d 348] |
| April 8, 2008 |
| Appellate Division, First Department |
| In the Matter of Michelle F.F., Respondent, v Edward J.F.,Jr., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), forrespondent.
Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 14, 2006,which adjudged respondent father in willful violation of a March 25, 1996 order, and committedhim to the New York City Department of Correction for weekends between June 16 andDecember 16, 2006, unanimously affirmed, without costs. Order, same court and Judge, enteredon or about August 2, 2006, which denied the father's objections to the May 8, 2006 order of theSupport Magistrate, dismissing his petition for a downward modification of child support andadjustment of arrears, unanimously modified, on the facts, to grant the father's objections to theextent of decreasing arrears to $61,401, and otherwise affirmed, without costs.
Petitioner mother concedes that the amount of arrears fixed by the Support Magistrate($79,286) erroneously included $17,885, which had previously been reduced to judgment in1996. Accordingly, we reduce the amount of arrears to the extent indicated.
The mother proved that the father willfully failed to obey a lawful order requiring him to pay$140 per week in child support. The arrears in this case, as adjusted above, date back toSeptember 1995, and while the father presented evidence of his financial hardships after losinghis job in May 2000, he presented no evidence that he paid child support in full for periodsbefore May 2000, when he was working (see Matter of Powers v Powers, 86 NY2d 63,69 [1995]; Matter of Sheridan v Sheridan, 70 AD2d 698 [1979], lv dismissed 48NY2d 605 [1979]; Family Ct Act § 454).
The father contends that the part of Family Court Act § 454 (3) (a) that says, "failure topay support, as ordered, shall constitute prima facie evidence of a willful violation" isunconstitutional because it shifts the burden of proof to the person who is in the position of acriminal defendant. We reach this argument even though the father's jail term has ended (seeMatter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; Matter of Moore v Blank, 8 AD3d 1090, 1091 [2004], lvdenied 3 NY3d 606 [2004]), and where he failed to preserve the argument (see Matter ofStagnar v Stagnar, 98 AD2d 983, 984 [1983]). On the merits, the argument is unavailing,because the part of Family Court Act § 454 (3) (a) challenged by the father merely shiftsthe burden of going forward (see Powers, 86 NY2d at 69), and not the [*2]ultimate burden of proof (see Matter of Porcelain vPorcelain, 94 Misc 2d 891, 892-893 [1978]).
Contrary to the father's contention that he should not have been jailed because the mother didnot show that he was capable of paying the amount in arrears, the subject order of commitmentwas not conditioned on the payment of arrears (compare Matter of Nasser v Abraham, 86AD2d 973 [1982]).
Except as indicated above, Family Court providently exercised its discretion in denying thefather's objections to the Support Magistrate's dismissal of his petition (see Matter ofMusumeci v Musumeci, 295 AD2d 516 [2002]). While the father testified that he wasunemployed during certain periods before and after the filing of his petition, "the determinationto reduce support must be predicated on respondent's capacity to generate income, not on hiscurrent economic status" (O'Brien v McCann, 249 AD2d 92, 93 [1998]). The SupportMagistrate was not obliged to accept the father's unsupported testimony that a medical conditionprevented him from working full-time (see Matter of Maria T. v Kwame A., 35 AD3d 239, 240 [2006]),and the mother was within her rights to object that the father's testimony about what a doctorconcluded was hearsay (see Family Ct Act § 439 [d]). The Support Magistrate,who heard and saw the father, was in the best position to evaluate his credibility (see e.g.Moore, 8 AD3d at 1091; Matter of Reed v Reed, 240 AD2d 951, 952 [1997]), andevidently did not believe that he was diligently searching for new employment commensuratewith his qualifications and experience, which was the father's burden to show inasmuch as hispetition for downward modification was largely based on his loss of a job (see Matter of Cox v Cox, 20 AD3d527, 528 [2005]).
While the father should have been allowed to question the mother about her income (seee.g. Manno v Manno, 224 AD2d 395, 398 [1996]), this error was harmless because the fatherfailed to establish that he was entitled to a downward modification. The Support Magistrateprovidently exercised his authority to control the proceedings before him when he concluded thatquestions about the father's educational background were unnecessary in light of a prior courtfinding that the father was an educated man. Furthermore, the father waived his argument that theSupport Magistrate should not have required receipts signed by the parties' eldest son (throughwhom the father allegedly made child support payments) before he would allow the son to testifybecause when the Magistrate made this ruling, the father's lawyer acquiesced. Since theMagistrate's refusal to permit the son to testify was not connected with the father's jail sentence,normal rules of preservation apply, and we decline to consider this unpreserved argument (seee.g. Green v Green, 288 AD2d 436, 437 [2001]; Reed, 240 AD2d at 952-953).Concur—Tom, J.P., Saxe, Nardelli and Williams, JJ.