Opinion
2012-12-6
In the Matter of ST. LAWRENCE COUNTY SUPPORT COLLECTION UNIT, on Behalf of Lisa M. STREETMAN, Respondent, v. Scott J. LANEUVILLE, Appellant.
Lisa A. Burgess, Indian Lake, for appellant. Amy V. Casiuk, St. Lawrence County Department of Social Services, Canton, for respondent.
Lisa A. Burgess, Indian Lake, for appellant. Amy V. Casiuk, St. Lawrence County Department of Social Services, Canton, for respondent.
Before: PETERS, P.J., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.
McCARTHY, J.
Appeal from an order of the Family Court of St. Lawrence County (Morris, J.), entered February 23, 2012, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to hold respondent in willful violation of a prior child support order.
Pursuant to a January 2008 order, respondent was required to pay over $26,000 in child support arrears in monthly payments of $100, with the monthly amount increasing to $160 in August 2008. In August 2011, petitioner commenced this proceeding on behalf of the child's mother, alleging that respondent had not made any payments since June 2009. A Support Magistrate found respondent to be in willful violation of the prior order, and Family Court confirmed that finding, sentencing respondent to a 60–day jail term, suspended on the condition that he pay at least $130 monthly toward the arrears. Respondent now appeals.
We affirm. The uncontroverted testimony of a child support investigator employedby petitioner established that respondent had not complied with the prior support order, shifting the burden to respondent to offer “competent, credible evidence of his inability to make the required payments” ( Matter of Powers v. Powers, 86 N.Y.2d 63, 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995];see Matter of Christiani v. Rhody, 90 A.D.3d 1090, 1091–1092, 933 N.Y.S.2d 443 [2011],lv. denied18 N.Y.3d 809, 2012 WL 1033636 [2012] ). To that end, respondent testified that he has not been employed nor sought employment since 2006 due to medical issues that prohibit him from working. In support, he presented various medical records from 2011 and the testimony of his treating physician. Although the physician testified that respondent is unable to work due to neck discomfort and an inability to perform repetitive motions without fatiguing, she admitted that her opinion was based on respondent's subjective complaints, with no evidence of objective testing ( see Matter of Straight v. Skinner, 33 A.D.3d 1175, 1176, 823 N.Y.S.2d 277 [2006] ). Further, there is no indication in the medical records submitted by respondent that he is unable to work. Accordingly, we find that respondent failed to meet his burden of demonstrating an inability to make his required support payments and, therefore, the finding of a willful violation was warranted ( see id.; Matter of Columbia County Support Collection Unit v. Demers, 29 A.D.3d 1092, 1093, 814 N.Y.S.2d 802 [2006],lv. denied7 N.Y.3d 708, 822 N.Y.S.2d 482, 855 N.E.2d 798 [2006] ).
ORDERED that the order is affirmed, without costs.