| Matter of Wilson v LaMountain |
| 2011 NY Slip Op 02762 [83 AD3d 1154] |
| April 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Tandy Renee Wilson, Respondent, v Norman CraigLaMountain, Appellant. |
—[*1] Emily S. Cartwright, Franklin County Department of Social Services, Malone, forrespondent.
Egan Jr., J. Appeal from an order of the Family Court of Franklin County (Main, Jr., J.),entered May 18, 2010, which, in a proceeding pursuant to Family Ct Act article 4, committedrespondent to the Franklin County Jail for a term of 90 days.
The parties are the parents of two children (born in 1990 and 1995). In June 2005, FamilyCourt registered a child support order issued by a court in Nevada, which, in July 2004, requiredrespondent to pay $250 per month, per child, to petitioner (see Family Ct Act §580-601).[FN1]In January 2007, petitioner commenced the instant proceeding alleging respondent's willfulviolation of the order of support. Subsequently, petitioner filed an amended petition furtheralleging that respondent failed to pay his percentage of uncovered medical expenses for thechildren. Respondent was served with the petition and amended petition, but he failed to appearat the scheduled court appearance; in May 2007, a warrant was issued for his arrest.
In August 2009, respondent was arrested and appeared before a Support Magistrate. [*2]Following a hearing, the Support Magistrate found that respondenthad willfully violated the support order, established arrears and awarded a judgment of$23,526.35, and referred the matter to Family Court for confirmation. Family Court confirmedthe Support Magistrate's findings and, after a hearing, imposed a sentence of 90 days injail.[FN2]Respondent now appeals, contending that Family Court erred in committing him to a period ofincarceration absent proof of his ability to pay the support obligation.
Pursuant to Family Ct Act § 437, a respondent is presumed to have sufficient means tosupport his or her spouse and children. " 'Proof of a failure to make required support payments isprima facie evidence of a willful violation' " (Matter of St. Lawrence County Support Collection Unit v Cook, 57AD3d 1258, 1258-1259 [2008], lvs denied 12 NY3d 707 [2009], quoting Matter of St. Lawrence County Dept. ofSocial Servs. v Pratt, 44 AD3d 1125, 1125 [2007], lv dismissed and denied 9NY3d 1020 [2008]; see Family Ct Act § 454 [3] [a]), which then shifts the burdento the respondent to provide some "credible evidence of his [or her] inability to make therequired payments" (Matter of Powers v Powers, 86 NY2d 63, 70 [1995]; see Matter of Chamberlain vChamberlain, 69 AD3d 1249, 1250 [2010]; Matter of Vickery v Vickery, 63 AD3d 1220, 1221 [2009]). Here, arepresentative of the Franklin County Child Support Collection Unit provided unrefutedtestimony at the hearing before the Support Magistrate that the child support arrears exceeded$28,000, with the last payment having been made in February 2006. Petitioner confirmed that shehad not received any child support payments since February 2006, and also testified that she hadnot received payment for respondent's half of the children's uncovered medical bills. Thistestimony constituted prima facie evidence of a willful violation of the order. The burden thenshifted to respondent to offer evidence of his inability to make those payments.
To that end, respondent testified that he was the recipient of Social Security disabilitybenefits, food stamps, energy aid and Medicaid benefits, and that a 1998 gunshot woundprevented him from working and, thus, paying child support. However, respondent admitted tohaving worked as a truck driver sometime in 2003 until 2004 and that he lost that job because theemployer closed. Although respondent supplied some medical records and reports documentinghis injuries,[FN3]both the Support Magistrate and Family Court noted that the reports failed to provide a medicalopinion that respondent was unable to work. Contrary to respondent's contention, his testimonythat he was receiving Social Security disability benefits did not preclude Family Court fromfinding that he was capable of working (see Matter of Aranova v Aranov, 77 AD3d 740, 741 [2010];Matter of Bukovinsky v Bukovinsky, 299 AD2d 786, 787-788 [2002], lvdismissed 100 NY2d 534 [2003]). According deference to Family Court's credibilityassessments (see Matter of Holbert vRifanburg, 39 AD3d 902, 903 [2007]), we find no basis to disturb the court'sdetermination committing respondent to a term of incarceration based on his willful violation ofthe support order (see Matter of Lewis vCross, 72 AD3d 1228, 1230 [2010]).
Spain, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: In April 2009, the older childturned 19—the age of majority in Nevada—and, accordingly, as of May 1, 2009,respondent's support payment was reduced by $250.
Footnote 2: By order of this Court enteredJune 14, 2010, we stayed Family Court's order.
Footnote 3: This medical documentation isnot included in the record on appeal.