| Matter of Clark v Clark |
| 2011 NY Slip Op 07324 [88 AD3d 1095] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kathleen M. Clark, Respondent, v Michael J.Clark, Appellant. |
—[*1] Marcel J. LaJoy, Albany, for appellant. Tammy Arquette, Clifton Park, for respondent.
McCarthy, J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered September 27, 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 andcommitted him to jail for 90 days.
Petitioner commenced this proceeding alleging that respondent willfully violated a December2006 child support order requiring respondent to pay support for their two children. A SupportMagistrate found respondent to be in willful violation, established arrears of $9,160.97,recommended that respondent be incarcerated and referred the matter to Family Court forconfirmation (see Family Ct Act § 439 [a]). At the first appearance forconfirmation, Family Court ordered that respondent submit to a psychiatric examination due tohis erratic behavior in court (Matter ofClark v Clark, 85 AD3d 1350, 1350 [2011], lv dismissed 17 NY3d 846 [2011]).
At the appearance set for a hearing, Family Court noted that the hospital had releasedrespondent the same day of the referral because the medical professionals apparently determinedthat respondent "did not pose a sufficient threat to himself or others but was nonetheless,psychotic." Respondent was not present in court. Respondent's counsel stated that hisobservations led him to believe that respondent was psychotic, he was incapable of participatingin the proceedings and counsel was unable to get any meaningful information from respondent. Arepresentative of the support collection unit reported that respondent had not made any [*2]payments in more than six months and had accumulated arrears ofover $11,000. Petitioner, her counsel and respondent's counsel agreed that respondent hadapparently lost his job after failing to return to work following a leave of absence. The courtissued a warrant to have respondent produced so the court could impose a sanction.
When respondent was produced pursuant to the warrant, he insisted on making irrationalarguments. Respondent acknowledged that he had not made support payments in compliancewith the order. When the court asked if respondent was going to pay, he responded that he couldnot, that he was not working, and that he was on public assistance and disability. When the courtnoted that being on public assistance did not prevent respondent from working, respondent statedthat he was prevented from working because the prior judgment took too much of his pay and hecould not fix his car when it broke down. Family Court then found respondent in willfulviolation, committed him to jail for 90 days and set a purge amount of $5,000. Respondentappeals.
Respondent was not denied the effective assistance of counsel. Although counsel stated thatrespondent was psychotic and that his arguments were irrational, these comments were not mademerely to disparage respondent or impede his legal position. Counsel was attempting to explainto Family Court why respondent was not present in court and that he was incapable ofparticipating in the proceedings. Rather than harming respondent, counsel's comments couldsupport a defense that respondent's mental disabilities rendered his failure to pay supportnonwillful (cf. Matter of Travell vTravell, 33 AD3d 1169, 1171 [2006]).
Family Court did not err in punishing respondent for willfully violating the order of support.Proof that respondent failed to pay the ordered child support for more than six monthsconstituted prima facie evidence of a willful violation (see Family Ct Act § 454 [3][a]; Matter of Madison County Commr.of Social Servs. v Felker, 80 AD3d 1107, 1107-1108 [2011]). The burden then shifted torespondent to present competent evidence of his inability to pay (see Matter of MadisonCounty Commr. of Social Servs. v Felker, 80 AD3d at 1108; Matter of St. Lawrence County SupportCollection Unit v Cook, 57 AD3d 1258, 1259 [2008], lvs denied 12 NY3d 707[2009]). As respondent did not appear for the hearing, he could not personally present anytestimony. While respondent's counsel agreed with petitioner that respondent had apparently losthis job, this statement was hearsay and, even if true, unemployment alone does not establishinability to pay. At the next appearance, set for Family Court to impose a sanction for theviolation, respondent did not provide a valid reason for his absence at the hearing andacknowledged that he had not paid the ordered support or filed a petition for a downwardmodification of support. Therefore, the court did not err in finding that respondent willfullyviolated the order of support.
Mercure, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.