Opinion
2015-04-09
In re ELYORAH E., Petitioner–Respondent, v. IAN E., Respondent–Appellant.
Daniel R. Katz, New York, for appellant. Debbie Yatzkan Jonas, Bronx, for respondent.
Daniel R. Katz, New York, for appellant. Debbie Yatzkan Jonas, Bronx, for respondent.
Order, Family Court, New York County (Jane Pearl, J.), entered on or about November 13, 2013, which, to the extent appealed from, confirmed an order of a Support Magistrate, dated September 5, 2013, finding, after a hearing, that respondent willfully violated a child support order, unanimously affirmed, without costs. Appeal from order, same court and Judge, entered on or about December 23, 2013, which denied respondent's objections to other portions of the magistrate's order, unanimously dismissed, without costs, as abandoned.
At the outset, we note that although respondent failed to timely perfect his appeal, petitioner neither moved to dismiss the appeal nor argued that she was prejudiced by the delay. Accordingly, in the interest of justice, we deem the appeal timely ( see Rodriguez v. National Equip. Corp., 304 A.D.2d 494, 759 N.Y.S.2d 55 [1st Dept.2003], lv. dismissed1 N.Y.3d 546, 775 N.Y.S.2d 242, 807 N.E.2d 292 [2003] ).
Petitioner presented prima facie evidence of respondent's willful violation of a lawful support order. In opposition, respondent failed to show by competent, credible evidence that he is incapable of making the required payments ( Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ). Respondent argues that he demonstrated his inability to pay by establishing that he suffers from a mental illness. Even assuming that respondent's largely unsupported testimony sufficiently established that his gambling addiction is a mental illness, he failed to show that his addiction affected his ability to work ( see Matter of John T. v. Olethea P., 64 A.D.3d 484, 485, 883 N.Y.S.2d 38 [1st Dept.2009]; Matter of Greene v. Holmes, 31 A.D.3d 760, 762, 820 N.Y.S.2d 597 [2d Dept.2006]; Boyd–Brooks v. Brooks, 6 A.D.3d 1143, 1143–1144, 776 N.Y.S.2d 428 [4th Dept.2004] ). Rather, the evidence established that respondent was able to work, that he often gambled away his earnings, and that his mother largely paid for his child support payments and living expenses.
In addition, respondent acknowledged that he had been gambling throughout the pendency of the proceedings, and did not seek effective treatment until nearly three years after this proceeding was commenced ( see Matter of Snyder v. Snyder, 277 A.D.2d 734, 716 N.Y.S.2d 154 [3d Dept.2000] ).
We note that respondent has not raised any argument on appeal relating to the order entered on or about on or about December 23, 2013.