Opinion
2014-11-26
In the Matter of Rachel GILLISON, respondent, v. Ricky GILLISON, appellant.
Marc A. Greenberg, Elmsford, N.Y., for appellant.
MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Appeal from an order of the Family Court, Westchester County (David Klein, J.), entered September 27, 2012. The order confirmed the finding of a Support Magistrate that the father willfully failed to obey an order of the court, and committed him to the Westchester County Correctional Facility for a period of six months.
ORDERED that the appeal from so much of the order as committed the father to the Westchester County Correctional Facility for a period of six months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired ( see Matter of Rodriguez v. Suarez, 93 A.D.3d 730, 939 N.Y.S.2d 870); and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
Evidence of the father's failure to pay child support as ordered constituted prima facie evidence of a willful violation ( seeFamily Ct. Act § 454[3] [a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S. 2d 984, 653 N.E.2d 1154; Matter of McMinn v. Taylor, 118 A.D.3d 887, 888, 988 N.Y.S.2d 247). The burden then shifted to the father to offer competent, credible evidence of his inability to make the required payments ( see Matter of Powers v. Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154). The father, who the Support Magistrate found lacked credibility in his testimony regarding his search for employment, did not sustain this burden, as he failed to present competent, credible evidence that he made reasonable efforts to obtain gainful employment to meet his child support obligation ( see Matter of McMinn v. Taylor, 118 A.D.3d at 888, 988 N.Y.S.2d 247; Seleznov v. Pankratova, 57 A.D.3d 679, 681, 871 N.Y.S.2d 189; Matter of Vasconcellos v. Vasconcellos, 37 A.D.3d 613, 829 N.Y.S.2d 705; Matter of Teller v. Tubbs, 34 A.D.3d 593, 594, 824 N.Y.S.2d 387).
The father's contention that he was deprived of effective assistance of counsel is without merit, as the record reveals that he received meaningful representation ( see Matter of McMinn v. Taylor, 118 A.D.3d at 888, 988 N.Y.S.2d 247; Matter of Phillips v. Giddings, 96 A.D.3d 950, 951–952, 946 N.Y.S.2d 496; Matter of Rodriguez v. Suarez, 93 A.D.3d at 730, 939 N.Y.S.2d 870).
The father's remaining contention is not properly before this Court.