| Matter of Seleznov v Pankratova |
| 2008 NY Slip Op 09803 [57 AD3d 679] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mIn the Matter of Alexandr Seleznov, Appellant, v EleonoraPankratova, Respondent. (Proceeding No. 1.) In the Matter of Eleonora Pankratova, Respondent, vAlexandr Seleznov, Appellant. (Proceeding No. 2.) |
—[*1]
In two related proceedings pursuant to Family Court Act article 4, the father appeals from (1) anorder of the Family Court, Kings County (Silber, J.), dated June 5, 2007, which denied his objectionsto an order of the same court (LaFreniere, S.M.), dated March 9, 2007, dismissing his petition, amongother things, for downward modification of his child support obligation and a change in custody of theparties' child from the mother to him, on the ground of lack of jurisdiction, and (2) an order of the samecourt (Hepner, J.), dated March 7, 2008, which, after a hearing, confirmed an order of the same court(LaFreniere, S.M.), dated January 3, 2008, finding that he willfully violated a child support order of thesame court (LaFreniere, S.M.), dated November 17, 2006, and committed him to the New York CityDepartment of Correction for a term of imprisonment of six months with the opportunity to purge thecontempt by payment of the sum of $8,000 toward his arrears.
Ordered that the order dated June 5, 2007, is reversed, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Kings County, for further proceedingsconsistent herewith; and it is further,
Ordered that the appeal from so much of the order dated March 7, 2008, as committed the fatherto the New York City Department of Correction for a term of imprisonment of six months is dismissedas academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Kainth v Kainth, 36 AD3d915 [2007]); and it is further,
Ordered that the order dated March 7, 2008, is affirmed insofar as reviewed, without costs ordisbursements.
The Family Court erred in dismissing the father's petition which sought, among other things,downward modification of his child support obligation and a change in custody of the parties' child fromthe mother to him. Under the circumstances of this case, the Family Court possessed jurisdiction toadjudicate the father's petition on the merits (see Family Ct Act § 652 [b] [ii];Matter of Renzulli v McElrath, 286 AD2d 335, 336 [2001]; cf. Coleman v Coleman,294 AD2d 530 [2002]; Lahaie v Stortecky, 91 AD2d 723 [1982]). Accordingly, the mattermust be remitted to the Family Court, Kings County, for such a determination.
The Family Court correctly determined that the father willfully violated the order of support datedNovember 17, 2006. The father admitted at a hearing on March 9, 2007, that he had not paid any childsupport since 2005, which constituted prima facie evidence of a willful violation of the order of support,and shifted the burden to the father to offer competent, credible evidence of his inability to comply withthe order of support (see Family Ct Act § 454 [3] [a]; Matter of Powers vPowers, 86 NY2d 63, 69 [1995]; Yeager v Yeager, 38 AD3d 534 [2007]; Matter of Kainth v Kainth, 36 AD3d915, 916 [2007]; Matter of Jarrett vMosslih, 34 AD3d 808 [2006]; Matter of Teller v Tubbs, 34 AD3d 593 [2006]). The father failed tomeet his burden. The evidence established, by clear and convincing evidence, that the father willfullyand deliberately situated himself in a position to have limited income, and failed to demonstrate that hehad made reasonable efforts to obtain gainful employment to meet his child support obligation (seeMatter of Teller v Tubbs, 34 AD3d at 594).
The father's remaining contention is without merit. Miller, J.P., Dickerson, Leventhal and Belen, JJ.,concur.