Summary
In Barrett v. Pickett, 117 Miss. 825, 78 So. 777, the appeal bond from a judgment of the justice of the peace court was blank as to the penalty.
Summary of this case from J. R. Watkins Co. v. GuessOpinion
2002-11309.
Decided March 15, 2004.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Turbow, J.), dated December 2, 2002, which, in effect, confirmed a determination of the same court (Mayeri, H.E.), dated October 21, 2002, finding, after a hearing, inter alia, that he willfully violated an order of support dated May 24, 1999, in effect, adjudicated him in contempt, and thereupon committed him to the New York City Department of Corrections for a term of incarceration of three months.
Marva Prescod, Brooklyn, N.Y., for appellant.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The Family Court correctly confirmed the Hearing Examiner's determination that the father willfully violated the support order. The proof before the Hearing Examiner of the father's failure to pay child support as ordered constituted "prima facie evidence of a willful violation" of the support order (Family Ct Act § 454[a]; see Matter of Johnson v. Johnson, 1 A.D.3d 599). The burden of going forward then shifted to the father "to offer some competent, credible evidence of his inability to make the required payments" ( Matter of Powers v. Powers, 86 N.Y.2d 63, 69-70). The father failed to present any credible evidence that he was financially unable to meet his obligation ( see Matter of Johnson v. Johnson, supra; Matter of Commissioner of Social Servs. v. Rosen, 289 A.D.2d 487; Matter of Fallon v. Fallon, 286 A.D.2d 389).
The hearing examiner, who had the opportunity to see and hear the witnesses, rejected the father's claim that his Social Security benefits were his sole source of income and that he was unemployable due to physical disability, and those findings are entitled to great deference on appeal ( see Matter of Gayle v. Counts, 302 A.D.2d 521; Matter of Andre v. Brumaire, 299 A.D.2d 355; Matter of Cattell v. Cattell, 254 A.D.2d 357; Matter of Stone v. Stone, 236 A.D.2d 615).
The father's remaining contentions are without merit.
ALTMAN, J.P., KRAUSMAN, H. MILLER and COZIER, JJ., concur.