| Matter of St. Lawrence County Support Collection Unit v Cook |
| 2008 NY Slip Op 10083 [57 AD3d 1258] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of St. Lawrence County Support Collection Unit, on Behalfof Jennifer M. Gooshaw, Respondent, v John P. Cook, Appellant. (Proceeding No. 1.) In the Matterof St. Lawrence County Support Collection Unit, on Behalf of Sarah R. Paquin,Respondent, v John P. Cook, Appellant. (Proceeding No. 2.) In the Matter of St. LawrenceCounty Support Collection Unit, on Behalf of Crystal M. Murray, Respondent, v John P. Cook,Appellant. (Proceeding No. 3.) |
—[*1] Amy V. Casiuk, St. Lawrence County Department of Social Services, Canton, forrespondent.
Peters, J.P. Appeals from three orders of the Family Court of St. Lawrence County (Potter, J.),entered October 30, 2007, which granted petitioner's applications, in three proceedings pursuant toFamily Ct Act article 4, to hold respondent in willful violation of prior support orders.
Respondent has fathered five children with three different women. In 1999, respondent wasordered to pay $26.19 per week in child support to Sarah R. Paquin;[FN1]in 2001, he was ordered to pay $25 per month for child support to Jennifer M. Gooshaw; and, in2003, he was ordered to pay $25 per month for child support to Crystal M. Murray. Petitionercommenced these three proceedings in April 2007 on behalf of Paquin, Gooshaw and Murray, allegingin each that respondent violated the respective order of support by, among other things, failing to makethe required payments. Following separate hearings on the violation petitions, a Support Magistratefound that respondent had willfully violated each of the support orders. Family Court confirmed thefindings of willfulness and sentenced respondent to a total of 300 days in jail for violating the threesupport orders. Respondent now appeals.[FN2]
We affirm. "Proof of a failure to make required support payments is prima facie evidence of awillful violation" (Matter of St. LawrenceCounty Dept. of Social Servs. v Pratt, 44 AD3d 1125, 1125 [2007], lv dismissed anddenied 9 NY3d 1020 [2008] [citations omitted]; see Matter of Kelly v Schoonbeck, 34 AD3d 1094, 1095 [2006]). Theundisputed proof presented in each of these proceedings, that respondent has failed to make therequired child support payments since 2003 and owes significant arrearages, constituted prima facieevidence of a willful violation of the orders. The burden then shifted to respondent to offer "somecompetent, credible evidence of his inability to make the required payments" (Matter of Powers vPowers, 86 NY2d 63, 70 [1995]; seeMatter of Holbert v Rifanburg, 39 AD3d 902, 903 [2007]).
At the hearing on the violation petition commenced on behalf of Gooshaw, respondent attributedhis inability to pay to his periodic incarceration and inconsistent employment. Specifically, respondentsubmitted a financial statement revealing that he earned no income [*2]during the previous year, and testified as to his sporadic employment forshort periods of time between 2004 and 2007, during which time he received little more than minimumwage and often worked less than full time. He also acknowledged, however, that during such periods ofemployment, he never once contributed any of his salary towards his child support obligations. "Arespondent's failure to pay court-ordered support during a period in which he had sources of incomewill support a finding that he willfully violated a support order, even when he is currently indigent andunable to make any payments" (Matter of Department of Social Servs. of Fulton County vHillock, 96 AD2d 625, 625 [1983] [citation omitted]; see Matter of Powers v Powers, 86NY2d at 69-70; Matter of Porcelain v Porcelain, 143 AD2d 834, 835 [1988]). Further, anyfinancial hardship or loss of employment occasioned by respondent's incarceration resulted solely fromhis self-imposed wrongful conduct and does not demonstrate an inability to make child supportpayments (see Matter of Knights v Knights, 71 NY2d 865, 866-867 [1988]; Matter of Freedman v Horike, 26 AD3d680, 682 [2006]; Matter of Winn vBaker, 2 AD3d 1169, 1170 [2003]). Although respondent also testified that he resided withGooshaw for unspecified periods of time between 2001 and 2007 during which he supported thechildren, his testimony in this regard was vague and inconsistent, and Family Court credited thecontradictory testimony provided by Gooshaw, a determination which we accord deference (seeMatter of Freedman v Horike, 26 AD3d at 682; Matter of Heyn v Burr, 19 AD3d 896, 898 [2005]). With respondenthaving failed to produce credible proof of his inability to make the required payments, Family Courtproperly determined that he willfully violated the support order in favor of Gooshaw.
At the hearings on the petitions filed on behalf of Paquin and Murray, respondent failed to provideany evidence of his inability to make the payments required by the respective child support orders.Consequently, a finding that he willfully violated each of these orders was warranted (see Matter ofPowers v Powers, 86 NY2d at 69-70).[FN3]
Finally, we reject respondent's contention that he was denied the effective assistance of counsel.Viewed in its totality, the record reveals that respondent was provided with competent and meaningfulrepresentation throughout each of the proceedings, and the claimed deficiencies by counsel are eitherattributable to legitimate trial tactics or have not been shown to result in actual prejudice to respondent(see Matter of Kemp v Kemp, 19 AD3d748, 751 [2005], lv denied 5 NY3d 707 [2005]; Matter of Moreau v Sirles, 268AD2d 811, 813-814 [2000], lv denied 95 NY2d 752 [2000]; Matter of Dingman vPurdy, 221 AD2d 817, 818 [1995]).
Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote 1: Such amount was increased to $31per week in January 2007.
Footnote 2: Respondent's petitions seekingdownward modification of the support orders in favor of Gooshaw and Murray were dismissed, and hehas not appealed in that regard.
Footnote 3: To the extent that respondentchallenges his obligation to pay the medical and confinement expenses incurred in connection with thebirth of his child with Paquin, that obligation was imposed in a prior order from which respondent hasnot appealed. As such, his attack on the propriety of that order is not properly before us in the contextof this proceeding (see Family Ct Act § 1113; Matter of Groesbeck v Groesbeck, 52 AD3d 903, 903 [2008]).