Opinion
2014-04-8
In re GINA C., Petitioner–Respondent, v. AUGUSTO C., Respondent–Appellant.
Richard L. Herzfeld, New York, for appellant.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, FEINMAN, KAPNICK, JJ.
Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about May 2, 2013, which, upon the Support Magistrate's fact-finding determination, dated May 2, 2013, that respondent father willfully violated a child support order, committed him to the New York City Department of Corrections for a term of four months intermittent weekend incarceration, unless discharged by payment of $7,000.00 to the Child Support Collection Unit, unanimously affirmed, without costs.
The Support Magistrate properly found that respondent wilfully violated the order of child support. Petitioner established prima facie that respondent's failure to pay child support over a five year period was a willful violation of the order of support. In response, respondent failed to show that the violation was not willful by evidence that he was unable to make the required payments ( see 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 and his witnesses gave conflicting testimony as to whether he was working and there is no basis upon which to disturb the Support Magistrate's credibility determinations ( see Matter of Bruce L. v. Patricia C., 62 A.D.3d 566, 567, 880 N.Y.S.2d 253 [1st.2009], lv. denied12 N.Y.3d 715, 2009 WL 1851667 [2009] ).
Further, “unemployment alone does not establish inability to pay” ( Clark v. Clark, 88 A.D.3d 1095, 931 N.Y.S.2d 173 [3rd Dept.2011], lv. denied18 N.Y.3d 803, 2012 WL 44460 [2012],lv. dismissed18 N.Y.3d 918, 941 N.Y.S.2d 552, 964 N.E.2d 1019 [2012] ), especially given respondent's failure to show that he used his “best efforts to obtain employment commensurate with his qualifications and experience” ( see Bianca J. v. Dwayne A., 105 A.D.3d 574, 963 N.Y.S.2d 237, [1st Dept.2013] ). Moreover, prior to each court appearance, he appeared with a promise of employment and a minor payment on his outstanding arrears, only to lose the new job and discontinue support between hearing dates. Respondent's last minute attempts to avoid the consequences of his previous failure to pay, including staving off a potential jail sentence, should not be countenanced ( see Marcus v. Marcus, 14 A.D.3d 359, 788 N.Y.S.2d 341 [1st Dept.2005], lv. dismissed4 N.Y.3d 846, 797 N.Y.S.2d 422, 830 N.E.2d 321 [2005] ).
Respondent's claims that he was denied a fair trial, due to the Support Magistrate's reference to respondent's failure to pay child support for years prior to the hearing, and the Magistrate's questioning of the witnesses are unpreserved ( see Matter of Sheenagh O'R. v. Sean F., 50 A.D.3d 480, 482–83, 858 N.Y.S.2d 103 [1st Dept.2008] ). Were we to consider these claims, we would find that the Support Magistrate demonstrated no bias, and that the actions complained of were necessary in order to facilitate or expedite the orderly progress of the hearing ( see Cadle v. Hill, 23 A.D.3d 652, 804 N.Y.S.2d 429 [2d Dept.2005] ).
To the extent that the Support Magistrate considered certain notes and tape recordings of prior proceedings, the error, was harmless, given the evidence supporting the determination ( see 49th St. Mgt. Co. v. New York City Taxi and Limousine Commn., 277 A.D.2d 103, 106, 716 N.Y.S.2d 391 [1st Dept.2000] ).