| Matter of Fraser v Green |
| 2008 NY Slip Op 10162 [57 AD3d 896] |
| December 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of Genevieve Fraser, Respondent, v SelvinSolomon Green, Appellant. |
—[*1]
In a child support proceeding pursuant to Family Court Act articles 4 and 5-B, the father appealsfrom an order of commitment of the Family Court, Orange County (Klein, J.), entered April 18, 2008,which, after a hearing, found that he willfully violated a prior order of support of the same court datedAugust 30, 2004 and committed him to the Orange County Jail for a term of imprisonment of sixmonths unless he paid child support arrears in the sum of $62,316.22, plus any and all additionalarrears accruing subsequent to the date of the order.
Ordered that the appeal from so much of the order entered April 18, 2008 as committed the fatherto the Orange County Jail for a term of imprisonment of six months unless he paid child support arrearsin the sum of $62,316.22, plus any and all additional arrears that accrued subsequent to the date of theorder, is dismissed as academic, without costs or disbursements, as the period of incarceration hasexpired (see Matter of Greene v Holmes, 31 AD3d 760 [2006]); and it is further,
Ordered that the order entered dated April 18, 2008 is affirmed insofar as reviewed, without costsor disbursements.
The mother's proof that the father failed to pay child support as ordered constituted prima facieevidence of the father's willful violation of the support order (see Family Ct Act § 454[3] [a]; Matter of Powers v Powers, 86 NY2d 63, 69 [1995]; Matter of Smith vSmith, 55 AD3d 743 [2008]; Matter of Ferrara v Ferrara, 52 AD3d 599, 600 [2008]).The father failed to rebut this prima facie evidence of willfulness by offering competent, credibleevidence of his inability to pay (see Matter of Accettulli [*2]vAccettulli, 38 AD3d 766, 767 [2007]; Matter of Vasconcellos v Vasconcellos, 37 AD3d613 [2007]; Matter of Teller v Tubbs, 34 AD3d 593, 594 [2006]; cf. Matter of Kainth vKainth, 36 AD3d 915, 916 [2007]). Accordingly, the Family Court properly determined that hewillfully violated the support order (see Matter of Saintime v Saint Surin, 40 AD3d 1103[2007]; Matter of Bronstein-Becher v Becher, 25 AD3d 796 [2006]; Matter of Watson vWatson, 21 AD3d 497, 498 [2005]). Rivera, J.P., Angiolillo, Dickerson and Chambers, JJ.,concur.