Opinion
2019–07763 Docket No. F–8197–15
07-22-2020
In the Matter of Leanne M. O'BRIEN, Respondent, v. Keith W. O'BRIEN, Appellant.
Thomas T. Keating, Dobbs Ferry, NY, for appellant. Leanne M. O'Brien, New Hyde Park, NY, respondent pro se.
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
Leanne M. O'Brien, New Hyde Park, NY, respondent pro se.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Nassau County (Eileen C. Daly–Sapraicone, J.), dated June 5, 2019. The order of commitment, in effect, confirmed an order of disposition of the same court (Tomasina C. Mastroianni, S.M.) dated April 1, 2019, made after a hearing, finding that the father willfully violated a prior order of child support, and committed him to the custody of the Nassau County Correctional Facility for a period of four days unless he paid a purge amount of $500.
ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of four days is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Stradford v. Blake , 141 A.D.3d 725, 35 N.Y.S.3d 467 ); and it is further,
ORDERED that the order of commitment is affirmed insofar as reviewed, without costs or disbursements.
The mother commenced this proceeding against the father, alleging that he was in willful violation of an order of child support. Following a hearing, the Support Magistrate issued an order dated April 1, 2019, finding that the father's failure to comply with the order of child support was willful. In an order of commitment dated June 5, 2019, the Family Court, in effect, confirmed the Support Magistrate's order and committed the father to the custody of the Nassau County Correctional Facility for a period of four days unless he paid the purge amount of $500. The father appeals from the order of commitment.
The appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of four days must be dismissed as academic, as the period of incarceration has expired (see Matter of Stradford v. Blake , 141 A.D.3d 725, 35 N.Y.S.3d 467 ). However, in light of the enduring consequences which could flow from the determination that the father willfully violated a prior order of child support, the appeal from so much of the order of commitment as, in effect, confirmed the determination that the father was in willful violation of the order of child support is not academic (see Matter of Schad v. Schad , 158 A.D.3d 705, 706, 70 N.Y.S.3d 568 ). The father's failure to pay child support constituted prima facie evidence of a willful violation of the order of child support (see Family Ct Act § 454[3][a] ; Matter of Martin v. Cooper , 96 A.D.3d 849, 851, 947 N.Y.S.2d 526 ). This prima facie showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay child support in accordance with the terms of the order of child support was not willful (see Matter of Powers v. Powers , 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). The father failed to satisfy his burden. Thus, we agree with the Family Court's determination, in effect, to confirm the Support Magistrate's finding that the father willfully violated the order of child support (see Matter of Bea v. Winslow , 162 A.D.3d 763, 764–765, 79 N.Y.S.3d 79 ).
Moreover, contrary to the father's contention, the record, viewed in totality, reveals that he received meaningful representation (see Matter of Murray v. Fils–Aime , 170 A.D.3d 847, 849, 93 N.Y.S.3d 889 ; Matter of Fletcher v. Saul , 162 A.D.3d 1018, 1020 ; Matter of Becker v. Guenther 150 A.D.3d 985, 986, 55 N.Y.S.3d 148 ).
MASTRO, J.P., MILLER, MALTESE and BRATHWAITE NELSON, JJ., concur.