| Matter of Gorsky v Kessler |
| 2010 NY Slip Op 09133 [79 AD3d 746] |
| December 7, 2010 |
| Appellate Division, Second Department |
| In the Matter of Lynda Gorsky, Respondent, v John A. Kessler,Appellant. |
—[*1] Lynda Gorsky, Somers, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from anorder of commitment of the Family Court, Westchester County (Klein, J.), entered June 8, 2009, whichupon, in effect, confirming an order of the same court (Furman, S.M.), entered May 27, 2009, madeafter a hearing, inter alia, finding that he willfully violated a prior order of support and recommendingthat he be incarcerated for a term of six months, committed him to the Westchester County Jail for aperiod of 90 days with the opportunity to purge his contempt by paying the sum of $50,000.
Ordered that the order of commitment entered June 8, 2009, is affirmed, with costs.
Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violationof an order of support (see Family Ct Act § 454 [3]; Matter of Powers vPowers, 86 NY2d 63, 69-70 [1995]). Once a prima facie showing has been made, the burdenshifts to the party that owes the support to offer some competent, credible evidence of his or herinability to make the required payments (see Family Ct Act § 454 [3] [a]; Matter ofPowers v Powers, 86 NY2d at 69-70; Matter of Probert v Probert, 67 AD3d 806, 807 [2009]; Matter of Greene-Tyus v Tyus, 61 AD3d758 [2009]). Here, the mother presented testimony establishing the father's arrears and the fatheradmitted the existence of those arrears. Accordingly, the mother met her prima facie burden (see Matter of Calvello v Calvello, 20 AD3d525, 526 [2005]; Matter of Powers vHorner, 12 AD3d 609 [2004]; Matter of Sapp v Taylor, 298 AD2d 590, 591[2002]). In response, the father offered no "competent, credible evidence of his inability to make therequired payments" (Matter of Powers v Powers, 86 NY2d at 70; see Matter of Calvello vCalvello, 20 AD3d at 526). Accordingly, the Family Court properly determined that the fatherwillfully violated an order of child support.
Where a willful violation is found, the determination as to what sanction to impose lies within theFamily Court's discretion (see Matter ofArmstrong v Belrose, 9 AD3d 625, 627 [2004]; Matter of Commissioner of Social Servs.v Rosen, 289 AD2d 487, 489 [2001]). Here, the Family Court did not improvidently exercise itsdiscretion either in ordering 90 days of incarceration or in setting a purge amount of $50,000(compare Matter of Cattell v Cattell, 254 AD2d 357 [1998]; Matter of Harvey-Cook vBicknell, 206 AD2d 371, 372 [1994]; cf. Matter of Probert v Probert, 67 AD3d at807-808).[*2]
The father's remaining contentions are without merit (see Kessler v Kessler, 47 AD3d 892,894, 896 [2008]; Matter of Armstrong v Belrose, 9 AD3d at 627). Rivera, J.P., Dickerson,Lott and Roman, JJ., concur.