Opinion
606 CAF 18-00372
08-22-2019
In the Matter of Sheila Ann JORDAN, Petitioner-Respondent, v. Christopher D. REED, Respondent-Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order committing him to jail for six months upon a determination that he willfully violated a prior order to pay child support. We affirm.
Initially, we agree with the father that, although he has completed serving the term of six months in jail, the appeal is not moot because of the "enduring consequences [that] potentially flow from an order adjudicating a party in civil contempt" ( Matter of Bickwid v. Deutsch, 87 N.Y.2d 862, 863, 638 N.Y.S.2d 932, 662 N.E.2d 250 [1995] ; see Matter of Jasco v. Alvira, 107 A.D.3d 1460, 1460, 967 N.Y.S.2d 549 [4th Dept. 2013] ; cf. Matter of McGrath v. Healey, 158 A.D.3d 1069, 1069–1070, 70 N.Y.S.3d 314 [4th Dept. 2018] ).
We reject the father's contention that Family Court erred in determining that he willfully failed to comply with the order of support. The "failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation" ( Family Ct Act § 454[3][a] ; see Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; Matter of Mandile v. Deshotel, 136 A.D.3d 1379, 1379–1380, 24 N.Y.S.3d 828 [4th Dept. 2016] ), shifting to the father the burden to "offer some competent, credible evidence of his inability to make the required payments" ( Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; see Mandile, 136 A.D.3d at 1380, 24 N.Y.S.3d 828 ). The father's contention that he failed to make the child support payments because he was not financially able to do so is raised for the first time on appeal and thus is not preserved for appellate review (see generally Matter of Commissioner of Social Servs. v. Turner, 99 A.D.3d 1244, 1245, 951 N.Y.S.2d 814 [4th Dept. 2012] ). In any event, that contention is belied by the father's representations to the court and the Support Magistrate, including that he had "just made a payment today ... across the street," that he had just "mailed ... in" a payment, and that he was employed and could pay $150 "today." The father also told the court and Support Magistrate, inter alia, that he was working "under the table" fixing houses and cutting lawns, that he made a support payment of $25 and would make another payment of $25 on the following Monday, that he was working and had "just made a payment" of $50, and that he had $100 "on [him] right now." Thus, the court did not err in determining that the "father failed to satisfy his burden of demonstrating that his failure to pay was not willful" ( Matter of Pitka v. Pitka, 121 A.D.3d 1521, 1523, 994 N.Y.S.2d 750 [4th Dept. 2014] ; see Matter of Grill v. Genitrini, 168 A.D.3d 731, 732–733, 92 N.Y.S.3d 73 [2d Dept. 2019] ; Matter of Brooks v. Brooks, 163 A.D.3d 554, 556, 81 N.Y.S.3d 98 [2d Dept. 2018] ).
The father's further contention that the Support Magistrate miscalculated the amount of support that he owed is "improperly raised for the first time on appeal" ( Matter of Davis v. Williams, 133 A.D.3d 1354, 1355, 19 N.Y.S.3d 458 [4th Dept. 2015] ; see Matter of Kasprowicz v. Osgood, 101 A.D.3d 1760, 1761, 956 N.Y.S.2d 786 [4th Dept. 2012], lv denied 20 N.Y.3d 863, 2013 WL 1235503 [2013] ; Turner, 99 A.D.3d at 1245, 951 N.Y.S.2d 814 ).
Finally, we have considered the father's remaining contention and conclude that it is without merit.