| Matter of Kaplan v Kaplan |
| 2013 NY Slip Op 00337 [102 AD3d 873] |
| January 23, 2013 |
| Appellate Division, Second Department |
| In the Matter of Melanie Ann Kaplan,Respondent, v Edward Scott Kaplan, Appellant. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van der Waag ofcounsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the fatherappeals, as limited by his brief, from stated portions of an order of commitment of theFamily Court, Nassau County (Greenberg, J.), dated September 7, 2011, which wasissued upon the confirmation of an order of disposition and findings of fact of the samecourt (Miller, S.M.), both dated July 12, 2011, made after a hearing, finding that hewillfully violated a child support order.
Ordered that the order of commitment is affirmed insofar as appealed from, withoutcosts or disbursements.
Proof of failure to pay child support as ordered constitutes prima facie evidence of awillful violation of an order of support (see Family Ct Act § 454 [3] [a];Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]). Once a prima facieshowing has been made, the burden shifts to the party that owes the support to offer somecompetent, credible evidence of his or her inability to make the required payments(see Matter of Powers v Powers, 86 NY2d at 69-70). Here, upon the petitioner'sprima facie showing of the father's failure to pay child support as ordered, the fatherfailed to meet his burden of offering competent, credible evidence of his inability tomake the required payments (see Matter of Logue v Abell, 97 AD3d 582, 583 [2012]; Matter of Phillips v Giddings,96 AD3d 950, 951 [2012]; Matter of Cooper v Robertson, 69 AD3d 714, 714 [2010];Matter of Accettulli vAccettulli, 38 AD3d 766 [2007]; Matter of Vasconcellos v Vasconcellos, 37 AD3d 613[2007]; Matter of Teller vTubbs, 34 AD3d 593 [2006]). Accordingly, the Family Court properlydetermined that the father willfully violated an order of child support. Rivera, J.P.,Chambers, Roman and Cohen, JJ., concur.