| Matter of John T. v Olethea P. |
| 2009 NY Slip Op 05910 [64 AD3d 484] |
| July 21, 2009 |
| Appellate Division, First Department |
| In the Matter of John T., Respondent, v Olethea P.,Appellant. |
—[*1] Steven N. Feinman, White Plains, for respondent.
Order, Family Court, New York County (Mary E. Bednar, J.), entered on or about October25, 2007, as amended October 26, 2007, which committed respondent mother to the New YorkCity Department of Correction for weekends between October 26, 2007 and April 27, 2008,based upon an order of the same court and Judge, entered on or about June 19, 2007, confirmingthe findings of the Support Magistrate that respondent willfully violated an order dated July 7,2005, which fixed arrears at $39,200 and directed payment of $25 per month in child support,unanimously reversed, on the law, without costs, the order of commitment and the order fixingarrears vacated and the matter remanded for further proceedings consistent herewith.
The evidence shows that in June 2001, a default judgment was entered directing respondentto pay $1,065 per month in child support. In May 2004, she filed a modification petition and theSupport Magistrate found that she had demonstrated sufficient changes in circumstances towarrant a reduction in her support obligation for one year due to the fact that she was unable toseek employment because of a psychiatric disability. Approximately one year later, respondentmoved to terminate the support obligation based on the fact that her sole means of support wasSupplemental Security Income (SSI). At that time, the court imposed a $25 per month supportobligation, found that she was unable to work due to her disability and fixed arrears at over$39,000.
Respondent filed an objection seeking to cap the arrears at $500, pursuant to Family CourtAct § 413 (1) (g), and she submitted evidence that her sole means of support since 2001was SSI benefits which were below the poverty guidelines of the Department of Health andHuman Services (HHS). The objection was denied without prejudice.
In 2006, petitioner father filed a petition alleging that respondent failed to abide by thesupport order. At the hearing, respondent once again detailed that her sole source of income was$710 per month from SSI. The Support Magistrate directed respondent to pay the $25 per monthin child support, but respondent refused. Based on this refusal, the Support Magistrate found thatshe willfully failed to comply with the support order and recommended incarceration. Thisfinding was confirmed by the court after respondent failed to appear on two court dates.
A respondent is prima facie presumed in a hearing under section 454 of the Family Court[*2]Act to have sufficient means to support his or her children.The failure to provide support as ordered itself constitutes "prima facie evidence of a willfulviolation" (Family Ct Act § 454 [3] [a]). The burden of going forward requires respondentto offer some competent, credible evidence of the inability to make the required payments(see Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]; Provencal-Dayle v Dayle, 50 AD3d502 [2008], lv denied 10 NY3d 716 [2008]). Where a noncustodial parentdemonstrates that she needs Social Service financial assistance, she satisfies "one unassailablecriterion to overcome the presumption that would require her to be obligated for support of her[child]" (Matter of Rose v Moody, 83 NY2d 65, 70 [1993], cert denied 511 US1084 [1994]).
Here, respondent demonstrated that her sole source of income was SSI benefits, and thecourt recognized that she suffered from a psychiatric disability which prevented her fromworking. Although some of respondent's comments to the Support Magistrate and to the courtbelow are troubling, absent proof of an ability to pay, an order of commitment for willfulviolation of a support order may not stand (see Family Ct Act § 455 [5];Matter of Riccio v Paquette, 284 AD2d 335 [2001]).
Furthermore, inasmuch as the evidence shows that respondent's income from 2001 forwardnever exceeded HHS poverty guidelines, the arrears should have been fixed at $500 (seeMatter of Walsh v Shevlin, 307 AD2d 322 [2003]). The question of what appellant's futuresupport payments should be is not properly before us on this appeal, which is solely seeking tooverturn a willfulness finding. Concur—Tom, J.P., Friedman, Catterson, Moskowitz andRichter, JJ.