Opinion
2012-12-28
In the Matter of Ashlea KASPROWICZ, Petitioner–Respondent, v. Kristopher Osgood, Respondent–Appellant. In the Matter of Kristopher Osgood, Petitioner–Appellant, v. Ashlea Kasprowicz, Respondent–Respondent.
Kathleen P. Reardon, Rochester, for Respondent–Appellant and Petitioner–Appellant. Carolyn Kellogg Jonas, Wellsville, for Petitioner–Respondent and Respondent–Respondent.
Kathleen P. Reardon, Rochester, for Respondent–Appellant and Petitioner–Appellant. Carolyn Kellogg Jonas, Wellsville, for Petitioner–Respondent and Respondent–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
Respondent-petitioner father appeals from an order confirming the finding of the Support Magistrate that he willfully violated an order of child support. We affirm ( see Matter of Christine L.M. v. Wlodek K., 45 A.D.3d 1452, 1452, 846 N.Y.S.2d 849;Matter of Hunt v. Hunt, 30 A.D.3d 1065, 1065, 815 N.Y.S.2d 866). There is a presumption that a parent has sufficient means to support his or her minor children ( seeFamily 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;Hunt, 30 A.D.3d at 1065, 815 N.Y.S.2d 866), and the evidence that the father failed to pay support as ordered constitutes “prima facie evidence of a willful violation” (§ 454 [3][a] ). The burden then shifted to the father to present “some competent, credible evidence of his inability to make the required payments” ( Powers, 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;see Hunt, 30 A.D.3d at 1065, 815 N.Y.S.2d 866). The Support Magistrate, who was in the best position to evaluate the credibility of the witnesses ( see Matter of Natali v. Natali, 30 A.D.3d 1010, 1011–1012, 815 N.Y.S.2d 841), determined that the father was not credible and did not make reasonable efforts to obtain employment ( see Christine L.M., 45 A.D.3d at 1452–1453, 846 N.Y.S.2d 849;Hunt, 30 A.D.3d at 1065, 815 N.Y.S.2d 866), and “[g]reat deference should be given to the determination of the Support Magistrate” ( Matter of Yamonaco v. Fey, 91 A.D.3d 1322, 1323, 937 N.Y.S.2d 787,lv. denied19 N.Y.3d 803, 2012 WL 1538619;see Matter of Manocchio v. Manocchio, 16 A.D.3d 1126, 1128, 792 N.Y.S.2d 279). We note in any event that Family Court properly granted the relief sought in the violation petition based on the father's failure to submit a financial disclosure statement ( see § 424–a [b] ). The father's contention that the court erred in failing to cap his unpaid child support arrears at $500 pursuant to Family Court Act § 413(1) (g) “is raised for the first time on appeal and thus is not preserved for our review” ( Matter of Cattaraugus County Dept. of Social Servs. v. Stark, 75 A.D.3d 1098, 1098, 903 N.Y.S.2d 287;see Creighton v. Creighton, 222 A.D.2d 740, 743, 634 N.Y.S.2d 870).
We likewise reject the contention of the father that the court erred in confirming the Support Magistrate's denial of his petition for a downward modification of his support obligation ( see Matter of Duerr v. Cuenin, 280 A.D.2d 903, 904, 720 N.Y.S.2d 439). The father failed to meet his burden of “establishing that he diligently sought re-employment commensurate with his former employment” ( Matter of Leonardo v. Leonardo, 94 A.D.3d 1452, 1453, 942 N.Y.S.2d 728,lv. denied19 N.Y.3d 807, 2012 WL 2401528;cf. Matter of Glinski v. Glinski, 199 A.D.2d 994, 994–995, 606 N.Y.S.2d 468). Furthermore, the Support Magistrate did not err in denying the father's petition without receiving financial disclosure statements ( cf. Matter of Malcolm v. Trupiano, 94 A.D.3d 1380, 1381, 943 N.Y.S.2d 265;Matter of Harvey v. Benedict, 83 A.D.3d 1402, 1402–1403, 919 N.Y.S.2d 451) because the burden was on the father to demonstrate a substantial change in circumstances warranting a downward modification ( see Leonardo, 94 A.D.3d at 1453, 942 N.Y.S.2d 728;Duerr, 280 A.D.2d at 904, 720 N.Y.S.2d 439). We conclude that any alleged error by the Support Magistrate in relying on documents not in evidence in making its determination as to the father's credibility “is harmless because that [credibility] determination is supported by admissible evidence” ( Matter of Nathaniel W., 24 A.D.3d 1240, 1241, 806 N.Y.S.2d 838,lv. denied6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1173).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.