| Matter of Santana v Gonzalez |
| 2011 NY Slip Op 08872 [90 AD3d 1198] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Julie Santana, Now Known as Julie Ortiz,Respondent, v Jaime Gonzalez, Appellant. |
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Peters, J. Appeal from an order of the Family Court of Montgomery County (Cortese, J.),entered February 1, 2011, 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.
Pursuant to a May 2008 order, respondent (hereinafter the father) is required to pay petitioner(hereinafter the mother) $184 in biweekly child support. When the father failed to make therequired payments, a Support Magistrate found that he had violated the support order, but thatsuch violation was not willful, and, in a December 2008 order, required that he make additionalbiweekly payments of $100 towards arrears. Thereafter, the father again failed to comply with hissupport obligations and, in June 2009, Family Court issued an order finding a willful violationand sentencing the father to a 90-day jail term, suspended on the condition that he comply withthe orders of support and arrears.
In October 2009, the mother commenced this proceeding alleging the father's willfulviolation of the May 2008 and December 2008 orders based upon his continued nonpayment ofsupport and arrears. Following a hearing, Family Court found that the father had willfullyviolated the prior orders and sentenced him to 180 days in jail. The father appeals and we affirm.
We reject the father's contention that he did not have adequate notice that the issue beforeFamily Court was whether he again willfully violated the prior orders, as opposed to whether hissuspended judgment should be revoked. The petition clearly and specifically alleged [*2]that the father willfully violated the prior orders by failing to makethe required support and arrear payments and sought relief provided for in Family Ct Act §454. It did not seek a revocation of the father's suspended sentence pursuant to Family Ct Act§ 455. Furthermore, the summons sent to the father by Family Court contained therequisite statutory warnings regarding willful violation proceedings (see Family Ct Act§ 453 [b]), including the warning that he could face up to six months in jail for contempt iffound to have violated the prior orders. While the father correctly asserts that, at the initialappearance, the Support Magistrate attempted to clarify the mother's application as one seekingto lift the suspended sentence, Family Court—on more than one occasion prior to thefact-finding hearing—confirmed that the petition was for a willful violation of the priororders. Moreover, following the mother's prima facie showing of a willful violation, the courtarticulated that the burden was on the father to demonstrate an inability to make the requiredsupport payments—a showing that would be inapplicable if the issue were revocation ofthe suspended sentence (compare Family Ct Act § 455 [1] with Family CtAct § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63, 69-70[1995])—and at no time did the father raise any issue concerning the manner in which thecourt framed the issues. In fact, the father thereafter offered evidence that specifically addressedthis burden (compare Matter of Stagnar v Stagnar, 98 AD2d 983, 984 [1983]). Underthese circumstances, we find that he had adequate notice of the charges sufficient to allow him toprepare and present a defense (see Matter of Child Support Enforcement Unit v John M.,283 AD2d 40, 43 [2001]; compareMatter of Brunelle v Bibeau, 18 AD3d 927, 928 [2005]; Matter of Prinzo vJenkins, 251 AD2d 709, 709 [1998]; Matter of Commissioner of Social Servs. ofChemung County v Pronti, 227 AD2d 705, 706 [1996]; Matter of Lada v Lada, 220AD2d 665, 666 [1995]; Matter of Proper v Proper, 144 AD2d 712, 713 [1988];Matter of Stagnar v Stagnar, 98 AD2d at 984).
The father also argues that he was deprived of a substantial right because Family Court didnot afford his attorney an opportunity to make a closing statement at the hearing. Inasmuch as thefather's counsel neither requested the opportunity to make a closing argument nor objected toFamily Court's apparent oversight in failing to ask counsel if he wished to make one, he failed topreserve the issue for our review (see Mauro v Degroodt, 271 AD2d 892, 893 [2000];Matter of Miriam MM., 165 AD2d 934, 934 [1990]).
Turning to the father's challenge to Family Court's finding of willful violation, the unrefutedevidence that he had failed to comply with his support obligations and owed in excess of $7,400in arrears constituted prima facie evidence of a willful violation of the prior orders (seeFamily Ct Act § 454 [3] [a]), shifting the burden to the father to offer "some competent,credible evidence of his inability to make the required payments" (Matter of Powers vPowers, 86 NY2d at 70; see Matterof Wilson v LaMountain, 83 AD3d 1154, 1155-1156 [2011]; Matter of St. Lawrence County SupportCollection Unit v Cook, 57 AD3d 1258, 1259 [2008], lvs denied 12 NY3d 707[2009]). Yet, the father presented no evidence that he had made any efforts to find and maintaingainful employment during the period of the challenged violation, and his testimony that hesecured temporary employment shortly before the hearing—which was held more than ayear after the violation petition was filed—was insufficient to meet his burden ofdemonstrating an inability to make the required payments during the period in question. Thus, therecord supports the finding of a willful violation (see Matter of Scott v Scott, 50 AD3d 1193, 1194 [2008]; Matter of Broome County SupportCollection Unit v Corey, 44 AD3d 1128, 1129 [2007]; Matter of Fallon vFallon, 286 AD2d 389 [2001]).
Finally, inasmuch as the father has served the jail sentence imposed, his claim that thesentence is unduly harsh and excessive is moot (see Matter of Dyandria D., 22 AD3d 354, 355[*3][2005], lvs denied 6 NY3d 704 [2006]; Matter of Sales v Brozzo, 3 AD3d807, 807 [2004], lv denied 2 NY3d 706 [2004]; Matter of Wright v Wright,205 AD2d 889, 892 [1994]). The father's remaining contentions, to the extent not specificallyaddressed herein, have been reviewed and found to be without merit.
Mercure, A.P.J., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the order isaffirmed, without costs.