| Matter of Greene-Tyus v Tyus |
| 2009 NY Slip Op 02997 [61 AD3d 758] |
| April 14, 2009 |
| Appellate Division, Second Department |
| In the Matter of Yolanda Greene-Tyus,Respondent, v John Tyus, Appellant. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of commitment of the Family Court, Queens County (Buggs, J.), dated March 7, 2008,which, upon an order of the same court (Hickey, S.M.), also dated March 7, 2008, finding that hewillfully violated a prior order of support, in effect, confirmed the finding of willfulness andcommitted him to the New York City Department of Corrections for a term of imprisonment of90 days for nonpayment of child support unless he paid the sum of $30,000 for child support.
Ordered that the appeal from so much of the order of commitment as committed the father tothe New York City Department of Corrections for a term of imprisonment of 90 days isdismissed as academic, without costs or disbursements, as the period of imprisonment hasexpired (see Matter of Heinz v Faljean,57 AD3d 665 [2008]); and it is further,
Ordered that the order of commitment is affirmed insofar as reviewed, without costs ordisbursements.
Contrary to the father's contention, the Family Court properly determined that he willfullyviolated the order of support. The mother demonstrated that the father failed to pay child supportas ordered, and this constituted prima facie evidence of the father's willful violation of the orderof support. The father failed to rebut this prima facie evidence of willfulness by offeringcompetent, credible evidence of his inability to pay (see Matter of Fraser v Green, 57 AD3d 896 [2008]; Matter of Heinz v Faljean, 57 AD3d665 [2008]; Matter of Powers vHorner, 12 AD3d 609 [2004]).
The father's contention that the court erred in dismissing his petition for a downward [*2]modification of his child support obligation is not properly beforethis Court (see Matter of McDowell vDomenech, 31 AD3d 554 [2006]). Mastro, J.P., Dillon, Leventhal and Chambers, JJ.,concur.