Opinion
2003-09165.
Decided June 1, 2004.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Blass, J.), entered July 1, 2003, which denied his objections to an order of the same court (Buetow, H.E.), dated December 12, 2002, which, after a hearing, inter alia, found that he was in willful violation of a prior order of support, and denied his cross petition for a downward modification of his maintenance and child support obligations.
Joseph A. Milligan, Babylon, N.Y., for appellant.
Norman Paul Weiss, P.C., Huntington Station, N.Y., for respondent.
Before: DAVID S. RITTER, J.P., SANDRA L. TOWNES, WILLIAM F. MASTRO, PETER B. SKELOS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Family Court properly denied the father's objections to the Hearing Examiner's order, which, inter alia, found that he was in willful violation of a prior order of support, and denied his cross petition for a downward modification of his maintenance and child support obligations. The father's failure to pay support as ordered constituted prima facie evidence of a willful violation of the support order ( see Family Ct Act § 454[a]; Matter of Richards v. Bailey, 296 A.D.2d 412). The burden then shifted to the father to offer competent, credible evidence of his inability to comply with the order ( see Matter of Powers v. Powers, 86 N.Y.2d 63; Matter of Bickwid v. Deutsch, 229 A.D.2d 533). The father failed to sustain his burden to rebut the prima facie evidence of willfulness by showing sufficient proof of his inability to pay ( see Matter of Powers v. Powers, supra; Matter of Statfeld v. Statfeld, 296 A.D.2d 415; Matter of Faulkner v. Faulkner, 250 A.D.2d 767). Moreover, as the father failed to demonstrate that continued enforcement of his maintenance obligation pursuant to the parties' stipulation of settlement which was incorporated but not merged into their judgment of divorce would create an "extreme hardship" ( Matter of Ross v. Ross, 297 A.D.2d 286; see Pintus v. Pintus, 104 A.D.2d 866, 867; see also Domestic Relations Law § 236[B][9][b]), or to establish a substantial, unanticipated, and unreasonable change in circumstances warranting a reduction in child support ( see Matter of Boden v. Boden, 42 N.Y.2d 210; Praeger v. Praeger, 162 A.D.2d 671, 673; Nordhauser v. Nordhauser, 130 A.D.2d 561, 562), the Hearing Examiner properly denied his cross petition for a downward modification of his maintenance and child support obligations.
Contrary to the father's contention, he was not denied the effective assistance of counsel ( see Matter of Alfred C., 237 A.D.2d 517; see also People v. Satterfield, 66 N.Y.2d 796; People v. Baldi, 54 N.Y.2d 137).
RITTER, J.P., TOWNES, MASTRO and SKELOS, JJ., concur.