| Matter of Williams v Johnson |
| 2008 NY Slip Op 09149 [56 AD3d 1021] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Margaret Marie Williams, Formerly Known asMargaret Marie Johnson, Respondent, v Claude W. Johnson Jr.,Appellant. |
—[*1] Russell A. Schindler, Kingston, for respondent.
Rose, J. Appeals (1) from an order of the Family Court of Ulster County (McGinty, J.),entered October 29, 2007, which, in a proceeding pursuant to Family Ct Act article 4, committedrespondent to jail for a term of 90 days, and (2) from an order of said Court, entered October 31,2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 4,to hold respondent in willful violation of a prior support order.
Family Court confirmed that respondent had willfully violated a Supreme Court orderrequiring him to reinstate and maintain medical insurance coverage for petitioner pursuant to theterms of a separation agreement incorporated in the parties' judgment of divorce. Family Courtalso found that respondent failed to pay petitioner for her unreimbursed medical expensesincurred due to his failure to pay the required insurance premium and committed him to jail for90 days unless he paid the purge amount of $17,177.41 for those unreimbursed medicalexpenses.
There is no merit to respondent's initial contention on appeal that he did not willfully violatethe earlier Supreme Court order which required him to comply with the judgment of divorce bymaintaining medical insurance coverage for petitioner. Petitioner's undisputed proof thatrespondent failed to pay the June 2007 insurance premium when it was due, and that this [*2]omission terminated her insurance, constituted prima facie evidenceof a willful violation (see Family Ct Act § 454 [3] [a]), placing the burden uponrespondent to provide credible evidence of an inability to make the required payments (seeMatter of Powers v Powers, 86 NY2d 63, 69-70 [1995]; Matter of Walsh vKaramitis, 291 AD2d 749, 750 [2002]; Matter of Snyder v Snyder, 277 AD2d 734,734 [2000]). Respondent failed, however, to claim an inability to pay. Instead, he argued that hedid not pay the premium because petitioner did not clearly advise him when the next monthlypremium was due. For her part, petitioner testified that she handed exhibit No. 1, which stateswhen the premiums were due, to respondent in court prior to the issuance of Supreme Court'sorder. Family Court credited petitioner's testimony on this issue and rejected respondent'sexplanation. According deference to the court's credibility assessments (see Matter of Holscher v Holscher, 4AD3d 629, 630 [2004], lv denied 3 NY3d 606 [2004]; Matter of Reed vReed, 240 AD2d 951, 952 [1997]), we find no reason to disturb the determination thatrespondent willfully failed to maintain insurance coverage after he was ordered to reinstate it.
Nor do we disagree with the finding that respondent was in violation for failing to paypetitioner's medical expenses incurred due to the lack of insurance coverage. Supreme Court'sorder expressly required such payments and there can be no doubt that incurring such expenseswas a natural consequence of respondent's failure to maintain insurance coverage. Moreover,Judiciary Law § 773, which is made applicable by Family Ct Act § 156, mandates afine "sufficient to indemnify the aggrieved party" for any actual loss (see Matter of Ahmad v Naviwala, 14AD3d 819, 820-821 [2005], lv dismissed 5 NY3d 783 [2005]). To the extent thatpetitioner's medical expenses are not reimbursable by insurance, their amounts would be properlyincluded in any purge amount imposed in lieu of a fine (see Judiciary Law § 774[1]).
We do find merit, however, in respondent's argument that Family Court erred in itscalculation of the purge amount. The record shows that the court included expenses that wereincurred during several months when insurance coverage was retroactively in effect after beingreestablished in May 2007. Inasmuch as the record does not indicate whether the bills forservices rendered to petitioner during that time were resubmitted for payment, it does not supportFamily Court's inclusion of those bills in the purge amount. In addition, the court's calculationmistakenly includes the amount of $823.78, which was an insurance premium rather than amedical expense. Accordingly, this matter must be remitted to Family Court to redetermine thepurge amount and afford respondent a refund or credit if there was an overpayment.
We have considered the parties' remaining contentions and find them to be unavailing.
Cardona, P.J., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the order enteredOctober 29, 2007 is modified, on the facts, without costs, by reversing so much thereof asdetermined the purge amount; matter remitted to the Family Court of Ulster County for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed. Orderedthat the order entered October 31, 2007 is affirmed, without costs.