| Matter of Zepperi v Madera |
| 2008 NY Slip Op 09134 [56 AD3d 988] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Wendy Zepperi, Respondent, v William Madera,Appellant. |
—[*1] Stacey L. Brown, Amsterdam, for respondent.
Rose, J. Appeal from an order of the Family Court of Montgomery County (Cortese, J.),entered November 14, 2007, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a priororder of support.
Petitioner commenced this violation proceeding after respondent failed to make his orderedchild support payments. Following a hearing, the Support Magistrate found respondent to be inwillful violation and recommended that he be committed to jail for 30 days unless he compliedwith the support order. Family Court confirmed the finding of a willful violation andconditionally ordered his commitment to jail for 30 days. Respondent appeals, arguing that hisdecision to leave his former employment in order to continue his college education in anothercity in pursuit of a criminal justice degree, which he anticipated would allow him to earn"[a]nywhere from thirty thousand to sixty thousand [dollars annually]" upon graduation, negatedthe element of willfulness.
Inasmuch as respondent does not dispute that he failed to pay as required by the supportorder, which constitutes prima facie evidence of a willful violation (see Family Ct Act§ 454 [3] [a]), we need consider only whether he met his burden to present "competent,credible evidence of his inability to make the required payments" (Matter of Powers vPowers, 86 NY2d 63, 70 [1995]). While a voluntary reduction in earnings to pursue furthereducation or training with the realistic prospect that future income will be larger and provide agreater benefit to the child may [*2]be a factor to consider indetermining an award of child support (see e.g. Matter of Robesena W. v George B.D.,145 AD2d 426, 426-427 [1988]), respondent did not request a downward modification. Had hemade such an application and the requisite showing of a change in circumstances, it would havebeen for Family Court to determine whether his plan would be in the child's interest in the longrun (see Matter of Ciostek v Ciostek, 186 AD2d 1087, 1088 [1992]; see also Moore vMoore, 115 AD2d 894, 895-896 [1985]).
Here, on the other hand, there was evidence that respondent had failed to pay child support asordered before he left his former employment, and his testimony about the future benefit ofobtaining a college degree was purely speculative. In addition, we note that respondent testifiedthat he is able to work full time while attending college, yet he did not explain why he could notearn an income comparable to his former employment while doing so. Because respondent failedto demonstrate that he had made reasonable efforts to meet his child support obligation, he failedto satisfy his burden on the issue of inability to pay (see Matter of Nauman v Rice, 40 AD3d 1159, 1160 [2007];Matter of Bouchard v Bouchard, 263 AD2d 775, 777 [1999]. Thus, Family Court'sfinding that respondent willfully failed to obey a lawful support order is supported by the record(see Matter of Nickerson v Bellinger, 258 AD2d 688, 689 [1999]; Matter of Sutphin vDorey, 233 AD2d 698, 699 [1996]), and it was not an abuse of its discretion to sentence himto a term of 30 days in jail and conditionally suspend that sentence upon his compliance with thesupport order (see Family Ct Act § 454 [3] [a]; Matter of Mitchell v Rockhill, 45 AD3d 1140, 1141 [2007]; Matter of Armstrong v Belrose, 9AD3d 625, 627 [2004]).
Mercure, J.P., Spain, Kane and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.