Opinion
2000-01200
Submitted January 28, 2002.
March 5, 2002.
In a support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County (Koenig, J.), dated December 15, 1999, which confirmed a determination of the same court (Miller, H.E.), dated October 15, 1999, finding that she was in willful violation of an order of support of the same court, dated July 8, 1998, and directed her incarceration for a term of six months imprisonment based on her contempt.
John M. Zenir, Mineola, N.Y., for appellant.
Before: SONDRA MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, without costs or disbursements.
"[F]ailure to pay support as ordered itself constitutes `prima facie evidence of a willful violation'" (Matter of Powers v. Powers, 86 N.Y.2d 63, 69, quoting Family Ct Act § 454[a]). Thus, proof that the mother failed to pay support as ordered alone establishes willfulness, shifting the burden of going forward to the mother to demonstrate some evidence of an inability to pay (see, Matter of Powers v. Powers, supra, at 69; Matter of Nieves v. Gordon, 264 A.D.2d 445; Matter of Warner v. Monroe, 262 A.D.2d 684, 686; Matter of Makawi v. Makawi, 262 A.D.2d 487; Matter of Modica v. Thompson, 258 A.D.2d 653, 654).
In light of the mother's testimony that she could have made at least partial payments of her child support obligation, we find no basis to disturb the Family Court's conclusion that her disobedience of a prior order of support was willful (see, Matter of Makawi v. Makawi, supra, at 487).
The mother's remaining contentions are without merit.
S. MILLER, J.P., LUCIANO, SCHMIDT and CRANE, JJ., concur.