| Matter of Martin v Cooper |
| 2012 NY Slip Op 04752 [96 AD3d 849] |
| June 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of Andrea Martin, Respondent, v RonaldCooper, Appellant. (Proceeding No. 1.) In the Matter of Ronald Cooper, Appellant, v AndreaMartin, Respondent. (Proceeding No. 2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, DonaB. Morris, and Jodi H. Lev of counsel), for respondent.
In related child support proceedings pursuant to Family Court Act article 4, the father appeals(1) from an order of the Family Court, Richmond County (Wolff, J.), dated May 18, 2011, whichdenied his objections to two orders of the same court (Hickey, S.M.), dated February 24, 2011,and February 25, 2011, respectively, denying, after a hearing, his motion to vacate an order ofchild support of the same court dated September 13, 2007, made upon his default in appearing,denying his petition for a downward modification of his child support obligation, denying hismotion to retroactively cap the amount of the child support arrears due at $500, and determiningthat he willfully violated the order of child support, and (2) from an order of commitment of thesame court dated May 19, 2011, which confirmed the finding of willfulness and directed that hebe incarcerated for a term of three months on consecutive weekends, Fridays (7:00 p.m.) untilSunday (7:00 p.m.), or until he pays to the mother or posts the sum of $7,500.
Ordered that the appeal from so much of the order of commitment as directed that the fatherbe incarcerated is dismissed as academic, without costs or disbursements, as the period ofincarceration has expired (see Matter ofLarrier v Williams, 84 AD3d 805, 806 [2011]); and it is further,
Ordered that the order dated May 18, 2011, is affirmed, without costs or disbursements; andit is further,
Ordered that the order of commitment is affirmed insofar as reviewed, without costs ordisbursements.
The Family Court's denial of the father's objection to the Support Magistrate's [*2]finding of willfulness and her recommendation of a term ofincarceration was proper since the Support Magistrate's recommendation had no force and effectuntil confirmed by the Family Court Judge (see Family Ct Act § 439 [e]; see also Matter of Dakin v Dakin, 75AD3d 639 [2010]). "Such a determination by a support magistrate does not constitute a finalorder to which a party may file written objections" (Matter of Dakin v Dakin, 75 AD3d at640). Since the May 18, 2011, order did not confirm the willfulness determination, the father'sobjection was properly denied.
The father's objection to the Support Magistrate's denial of his motion to vacate the order ofsupport entered upon his default was also properly denied. "While this Court prefers to resolvematters concerning child support on the merits, it is still necessary for a party seeking to vacatean order entered upon default to show that there was a reasonable excuse for the default and apotentially meritorious defense" (Matterof Gustave-Francois v Francois, 88 AD3d 881, 881 [2011]). Here, the father failed toshow that there was a reasonable excuse for his default, and that failure mandated denial of thisobjection and the underlying motion without the need of reaching the issue of whether the fatherhad a meritorious defense (see Matter ofProctor-Shields v Shields, 74 AD3d 1347 [2010]).
The Family Court also properly denied the father's objection to the Support Magistrate'sdenial of his motion to retroactively cap any child support arrears at $500 pursuant Family CourtAct § 413 (1) (g), which states, in relevant part, that "[w]here the non-custodial parent'sincome is less than or equal to the poverty income guidelines amount for a single person asreported by the federal department of health and human services, unpaid child support arrears inexcess of five hundred dollars shall not accrue." "Great deference should be given to thecredibility determination of the Support Magistrate, who is in the best position to assess thecredibility of the witnesses" (Matter ofFeng Lucy Luo v Yang, 89 AD3d 946, 947 [2011]). The Support Magistrate found thefather's testimony with respect to his income to be "incredible," and the evidence contradicted thefather's claim that he fell below the poverty income guidelines.
To the extent that the father challenges the denial of his petition for downward modification,the Support Magistrate properly denied his petition. The father failed to establish that his childsupport obligation should be reduced pursuant to Family Court Act § 413 (1) (d) or that hewas entitled to a downward modification of his support obligation in any respect because,although he asserted that he had lost his job and was receiving public assistance, he did notsufficiently demonstrate that he diligently sought re-employment commensurate with his earningcapacity (see generally Schwaber vSchwaber, 91 AD3d 939 [2012]; Matter of Mera v Rodriguez, 74 AD3d 974, 974 [2010]; Matterof Grant v Green, 293 AD2d 540 [2002]; cf. Matter of Ceballos v Castillo, 85 AD3d 1161 [2011]).
Finally, in the order of commitment, the Family Court properly confirmed the SupportMagistrate's finding of willfulness. The father's failure to pay child support constituted primafacie evidence of a willful violation (see Family Ct Act § 454 [3] [a]). This primafacie showing shifted the burden to the father to come forward with competent, credible evidencethat his failure to pay support in accordance with the terms of the order on default was not willful(see Matter of Powers v Powers, 86 NY2d 63, 69 [1995]; see also Matter of Rube v Tornheim,67 AD3d 916 [2009]). The father failed to satisfy his burden. Dillon, J.P., Florio, Lott andSgroi, JJ., concur.