| Provencal-Dayle v Dayle |
| 2008 NY Slip Op 03685 [50 AD3d 502] |
| April 24, 2008 |
| Appellate Division, First Department |
| Helene Provencal-Dayle, Respondent, v Dwight Dayle,Appellant. |
—[*1] Helene Provencal-Dayle, respondent pro se.
Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about August16, 2007, which confirmed a determination of the Support Magistrate, dated July 16, 2007, thatrespondent willfully failed to obey an order of support, and ordered that respondent be committedto the Department of Correction for six months or until a $60,000 undertaking was paid to theChild Support Collection Unit, unanimously affirmed, without costs.
Respondent's failure to pay support as ordered constituted prima facie evidence of a willfulviolation of a support order, which respondent failed to rebut with competent evidence (seeMatter of Powers v Powers, 86 NY2d 63, 68-69 [1995]; Matter of Maria T. v Kwame A., 35 AD3d 239 [2006]). Althoughrespondent claims that he did submit such evidence, he failed to include in the record on appealmost of the minutes from the hearing before the Support Magistrate, and the Support Magistrate'sfindings of fact state otherwise. Accordingly, respondent "having submitted the appeal on anincomplete and insufficient record must abide the consequences" (Di Francesco v DiFrancesco, 23 AD2d 740, 740 [1965]; see Kahn v City of New York, 37 AD2d 520,521 [1971], affd 30 NY2d 690 [1972]). Furthermore, in light of respondent's long historyof nonpayment and the large sum of arrears, the court did not improvidently exercise itsdiscretion in declining to accept the Support Magistrate's recommendation that respondent beincarcerated for 30 days unless a $25,000 undertaking was [*2]paid, and instead imposing a six-month sentence of incarcerationuntil a $60,000 undertaking was paid (see Family Ct Act § 454 [1], [3]).Concur—Lippman, P.J., Friedman, Sweeny and Moskowitz, JJ.