| Matter of Cooper v Robertson |
| 2010 NY Slip Op 00253 [69 AD3d 714] |
| January 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Kenneth Cooper, Respondent, v DelandaRobertson, Appellant. |
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In a child support proceeding pursuant to Family Court Act article 4, the mother appealsfrom an order of the Family Court, Kings County (Krauss, J.), dated November 13, 2008, whichdenied her objections to an order of the same court (Baur, S.M.), dated April 15, 2008, which,after a hearing, in effect, found that she was in willful violation of a prior order of child support,and directed her to pay child support arrears in the sum of $3,380.49.
Ordered that the order dated November 13, 2008, is affirmed, without costs ordisbursements.
The Family Court correctly denied the mother's objections to the Support Magistrate'sdeterminations. Evidence of the mother's failure to pay child support as ordered constitutedprima facie evidence of a willful violation (see Family Ct Act § 454 [3] [a]; Matter of Jarrett v Mosslih, 34 AD3d808, 809 [2006]; Matter of Rawlinsv Williams, 27 AD3d 757 [2006]). The burden then shifted to the mother to offercompetent, credible evidence of her inability to make the required payments (see Matter ofPowers v Powers, 86 NY2d 63, 69 [1995]; Matter of Reinninger v Campbell, 47AD3d 635, 635 [2008]; Matter ofSaintime v Saint Surin, 40 AD3d 1103, 1104 [2007]; Matter of Greene v Holmes, 31 AD3d760, 762 [2006]). The mother, whom the Support Magistrate found lacked credibility in hertestimony regarding her income and access to funds, failed to sustain this burden (see Matter of Catton v Catton, 41AD3d 845 [2007]; Matter ofRosato v Rosato, 21 AD3d 418 [2005]). Although the mother asserted that she wasunemployed and had no money to pay child support, she did not present competent, credibleevidence to show that she had actively sought employment (see Matter of Richards vBailey, 296 AD2d 412, 413 [2002]; Matter of Fallon v Fallon, 286 AD2d 389[2001]; Matter of Warner v Monroe, 262 AD2d 684 [1999]).
The mother's remaining contentions either are without merit or are not properly before thisCourt (see Matter of Reinninger v Campbell, 47 AD3d at 636; Matter of Accettulli v Accettulli, 38AD3d 766, 767 [2007]). Mastro, J.P., Florio, Balkin and Leventhal, JJ., concur.