Opinion
2012-10-5
In the Matter of COMMISSIONER OF SOCIAL SERVICES, on behalf of Patricia FOSTER, Petitioner–Respondent, v. Willie TURNER, Respondent–Appellant.
Elizabeth A. Sammons, Williamson, for Respondent–Appellant. Daniel M. Wyner, County Attorney, Lyons (Cecily G. Molak Of Counsel), for Petitioner–Respondent.
Elizabeth A. Sammons, Williamson, for Respondent–Appellant. Daniel M. Wyner, County Attorney, Lyons (Cecily G. Molak Of Counsel), for Petitioner–Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Respondent appeals from an order finding that he willfully violated a prior order of child support and, inter alia, suspending his hunting and fishing licenses until all arrears are paid in full. Contrary to respondent's contention, Family Court properly confirmed the finding of the Support Magistrate that respondent willfully violated the prior order of support ( see Matter of Hunt v. Hunt, 30 A.D.3d 1065, 1065, 815 N.Y.S.2d 866;Matter of Rothfuss v. Thomas, 6 A.D.3d 1145, 1146, 775 N.Y.S.2d 657,lv. denied3 N.Y.3d 603, 782 N.Y.S.2d 697, 816 N.E.2d 570). There is a presumption that a respondent has sufficient means to support his or her spouse and minor children ( seeFamily Ct. Act § 437; Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154), and evidence that respondent failed to pay support as ordered constitutes “prima facie evidence of a willful violation” (§ 454[3][a] ). Here, petitioner introduced a calculation of the arrears owed by respondent ( see Matter of Moore v. Blank, 8 A.D.3d 1090, 1091, 778 N.Y.S.2d 370,lv. denied3 N.Y.3d 606, 785 N.Y.S.2d 22, 818 N.E.2d 664), and thus the burden shifted to respondent to introduce “some competent, credible evidence of his inability to make the required payments” ( Powers, 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154). “Under the circumstances of this case and, contrary to [respondent's] contention, the evidence that he was receiving Social Security disability benefits did not, by itself, preclude the ... [c]ourt from finding that he was capable of working” ( Matter of Karagiannis v. Karagiannis, 73 A.D.3d 1064, 1066, 901 N.Y.S.2d 669;see also Matter of Bukovinsky v. Bukovinsky, 299 A.D.2d 786, 787–788, 751 N.Y.S.2d 92,lv. dismissed100 N.Y.2d 534, 762 N.Y.S.2d 875, 793 N.E.2d 412). Furthermore, we reject the contention of respondent that he was deprived of meaningful representation ( see Matter of Leslie v. Rodriguez, 303 A.D.2d 1016, 1017, 757 N.Y.S.2d 190;Matter of Amanda L., 302 A.D.2d 1004, 1004, 754 N.Y.S.2d 494;see generally People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Respondent also contends that the court erred in failing to cap his unpaid child support arrears at $500 and that his hunting and fishing licenses should not have been suspended because he receives supplemental security income ( seeFamily Ct. Act §§ 413[1][g]; 458–c[c][i] ). Those contentions are raised for the first time on appeal and thus are not preserved for our review ( see Matter of Niagara County Dept. of Social Servs. v. Hueber, 89 A.D.3d 1433, 1433, 932 N.Y.S.2d 644,lv. denied18 N.Y.3d 805, 2012 WL 400028;Matter of Erie County Dept. of Social Servs. v. Shaw, 81 A.D.3d 1328, 1329, 916 N.Y.S.2d 396). Respondent failed to produce any evidence concerning his income during the time that the arrears accrued, and we decline to exercise our power to review his contention that his arrears should be capped. Nevertheless, we exercise our power to review his contention regarding his recreational licenses as a matter of discretion in the interest of justice. Family Court Act § 458–c(a) permits the court to order the suspension of the recreational licenses of respondents who have at least four months of arrears, but the statute further states that its provisions “shall not apply to ... respondents who are receiving ... supplemental security income” (§ 458–c[c][i] ). Petitioner does not dispute that respondent receives supplemental security income. Therefore, in light of the mandatory language in the statute, we modify the order by vacating that part suspending respondent's hunting and fishing licenses.
It is hereby ORDERED that the order so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating that part suspending respondent's hunting and fishing licenses and as modified the order is affirmed without costs.