Opinion
1521 CAF 17–00437
02-02-2018
In the Matter of Dorothy HWANG, Petitioner–Respondent, v. Daniel TAM, Respondent–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Respondent father appeals from an order confirming the Support Magistrate's determination that he willfully violated a prior order to pay child support for the parties' children and conditionally sentencing him to six months in jail if the adjudged child support arrearage was not satisfied within a stated period of time. We affirm.
A parent is presumed to be able to support his or her minor children (see Family Ct Act § 437 ; Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; Matter of Kasprowicz v. Osgood, 101 A.D.3d 1760, 1761, 956 N.Y.S.2d 786 [4th Dept. 2012], lv denied 20 N.Y.3d 863, 2013 WL 1235503 [2013] ). A "failure to pay support as ordered itself constitutes 'prima facie evidence of a willful violation' ... [and] establishes [the] petitioner's direct case of willful violation, shifting to [the] respondent the burden of going forward" ( Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; see Matter of Roshia v. Thiel, 110 A.D.3d 1490, 1492, 972 N.Y.S.2d 804 [4th Dept. 2013], lv dismissed in part and denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 [2013] ). To meet that burden, the respondent must "offer some competent, credible evidence of his [or her] inability to make the required payments" ( Powers , 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). If the respondent contends that he or she was unable to meet the support obligation because a physical disability interfered with his or her ability to maintain employment, the respondent must "offer competent medical evidence to substantiate" that claim (Matter of Fogg v. Stoll, 26 A.D.3d 810, 810–811, 809 N.Y.S.2d 368 [4th Dept. 2006] ; see Matter of Yamonaco v. Fey, 91 A.D.3d 1322, 1323, 937 N.Y.S.2d 787 [4th Dept. 2012], lv denied 19 N.Y.3d 803, 2012 WL 1538619 [2012] ). Specifically, that medical evidence must establish that the alleged physical disability "affected [his or] her ability to work" (Matter of Lewis v. Cross, 72 A.D.3d 1228, 1230, 897 N.Y.S.2d 783 [3d Dept. 2010] ).
Here, petitioner mother established that the father willfully violated the prior order by presenting evidence that the father had not made any of the required child support payments, and the father failed to offer any medical evidence to substantiate his claim that his disability prevented him from making any of the required payments (see Yamonaco, 91 A.D.3d at 1322, 937 N.Y.S.2d 787 ). The fact that the father was receiving Social Security benefits does not preclude a finding that he was capable of working where, as here, his claimed inability to work was not supported by the requisite medical evidence (see generally Matter of Wilson v. LaMountain, 83 A.D.3d 1154, 1156, 921 N.Y.S.2d 362 [3d Dept. 2011] ).
We have reviewed the father's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.