| Matter of Madison County Commr. of Social Servs. v Felker |
| 2011 NY Slip Op 00459 [80 AD3d 1107] |
| January 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Madison County Commissioner of Social Services,on Behalf of Mary Chafee, Respondent, v Michael J. Felker,Appellant. |
—[*1] Suzanne Knight, Madison County Department of Social Services, Wampsville, forrespondent.
Cardona, P.J. Appeal from an order of the Family Court of Madison County (DiStefano, J.),entered March 19, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, to hold respondent in willful violation of a prior order of support.
Respondent is the father of a son born in 2002. Pursuant to a May 2007 order, he is obligatedto pay the child's mother, Mary Chafee, $25 per week in child support. In that order, it was notedthat respondent, though unemployed at that time, had held full-time employment in the past andwas "healthy and capable of working." It is undisputed that, since entry of that order, respondenthas never paid support as required therein. In December 2008, petitioner commenced thisviolation proceeding on behalf of Chafee. Following a hearing, a Support Magistrate foundrespondent in willful violation of the support order and recommended a sentence of incarcerationbe imposed if, among other things, he did not begin to make regular payments in accordance withthe May 2007 order. The Support Magistrate also entered a money judgment directing paymentof $3,325 in arrears. Thereafter, following a confirmation hearing held in accordance with FamilyCt Act § 439 (a), Family Court confirmed the finding that respondent had willfully failedto obey the support order and ordered that respondent be incarcerated for 180 days unless hepurged himself of the contempt by payment of the arrears—which then totaled$3,650—in their [*2]entirety. This appeal ensued.
Respondent challenges Family Court's determination that he willfully violated the prior orderof support. Initially, the undisputed proof of respondent's failure to pay support since entry of theMay 2007 order constituted prima facie evidence of a willful violation (see Family CtAct § 454 [3] [a]). The burden then shifted to respondent "to come forward withcompetent, credible evidence of his inability to do so" (Matter of Holbert v Rifanburg, 39 AD3d 902, 903 [2007]; seeMatter of Powers v Powers, 86 NY2d 63, 69 [1995]). While respondent testified that he isindigent and has earned no income since the issuance of the May 2007 order due to his inabilityto obtain work, he did not provide any competent evidence of either a physical or mentalcondition prohibiting him from earning income (see Matter of Vickery v Vickery, 63 AD3d 1220, 1221 [2009]; Matter of Columbia County SupportCollection Unit v Demers, 29 AD3d 1092, 1093 [2006], lv denied 7 NY3d 708[2006]). Although respondent also claimed that he had unsuccessfully applied for numerous jobssince entry of the May 2007 order, he failed to provide documentation of his alleged job searchand his testimony was not credited. Respondent also admitted that, although he was ordered toattend the career center and the Worker Parents Initiative, he failed to follow-up with attendanceafter his initial meeting. Given this proof and according due deference to the credibilitydeterminations of Family Court and the Support Magistrate (see Matter of Holbert vRifanburg, 39 AD3d at 903), we find no basis to disturb Family Court's confirmation of thefinding of respondent's willful violation of the order of support.
Next, respondent contends that Family Court erred in failing to cap his arrears at $500pursuant to Family Ct Act § 413 (1) (g) because his income was below the federal povertyguidelines. However, while respondent testified that he continues to be unemployed and isattempting to apply for public assistance, if he wished to "invoke the cap on arrears provided byFamily Ct Act § 413 (1) (g), his remedy was to make an application to 'modify, set aside orvacate' the earlier order" (Matter ofCortland County Dept. of Social Servs. v VanLoan, 77 AD3d 1135, 1136 [2010],quoting Family Ct Act § 451; seeMatter of Moore v Abban, 72 AD3d 970, 972-973 [2010]; Matter of Cook v Miller, 4 AD3d745, 746 [2004]). Significantly, respondent admitted that he has never sought a modificationof the May 2007 order of support. Thus, inasmuch as Family Ct Act § 413 (1) (g) "will notlimit the accrual of arrears during the relevant period absent respondent's affirmative request forand successfully obtaining relief from the original order" (Matter of Cortland County Dept. ofSocial Servs. v VanLoan, 77 AD3d at 1136; see Family Ct Act § 451; seealso Matter of Moore v Abban, 72 AD3d at 973; Matter of Martinez v Torres, 26 AD3d 496, 497 [2006]), weconclude that the court did not err in confirming the Support Magistrate's determination.
The remaining arguments advanced by respondent, including his assertion that he was denieda sufficient opportunity to present proof of his inability to pay support, have been examined andfound to be lacking in merit.
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.