From Casetext: Smarter Legal Research

Matter of Leslie v. Rodriguez

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 21, 2003
303 A.D.2d 1016 (N.Y. App. Div. 2003)

Opinion

CAF 01-02360

March 21, 2003.

Appeal from an order of Family Court, Erie County (Szczur, J.), entered May 17, 2001, which committed respondent to jail for a period of 60 days.

CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.

PRESENT: HURLBUTT, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.


MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Respondent contends that Family Court erred in denying his objections to the Hearing Examiner's order finding him to be in willful violation of an order of support and that the court therefore erred in committing him to jail for a period of 60 days. We reject that contention. Respondent's undisputed failure to comply with the order of support constituted prima facie evidence of a willful violation of that order (see Family Ct Act § 454 [a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 69; Matter of Fallon v. Fallon, 286 A.D.2d 389), and the burden therefore shifted to respondent to rebut that prima facie showing of willfulness (see Powers, 86 N.Y.2d at 69). Although respondent testified that he was terminated from his employment, it is undisputed that he collected unemployment within two months after that termination yet failed to pay any support. Moreover, the ability to pay support includes the ability to find employment, and respondent failed to show that he made a reasonable effort to find other employment (see Fallon, 286 A.D.2d 389; Matter of Nieves v. Gordon, 264 A.D.2d 445). Respondent's contentions concerning the penalty of incarceration are moot because respondent has served his sentence (see generally Matter of Johnson v. Boone, 289 A.D.2d 938; cf. Matter of Bickwid v. Deutsch, 87 N.Y.2d 862). Respondent received effective assistance of counsel (see Matter of Amanda L., 302 A.D.2d 1004 [Feb. 7, 2003]; Matter of Wright v. Lyons, 288 A.D.2d 481, 482). We have considered respondent's remaining contention and conclude that it is without merit.


Summaries of

Matter of Leslie v. Rodriguez

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 21, 2003
303 A.D.2d 1016 (N.Y. App. Div. 2003)
Case details for

Matter of Leslie v. Rodriguez

Case Details

Full title:MATTER OF ROSALIE LESLIE, PETITIONER-RESPONDENT, v. JOSE R. RODRIGUEZ…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 21, 2003

Citations

303 A.D.2d 1016 (N.Y. App. Div. 2003)
757 N.Y.S.2d 190

Citing Cases

Steuben Cnty. Support Collection Unit v. Cregan

MEMORANDUM AND ORDER It is hereby ORDERED that said appeal from the order insofar as it concerns commitment…

Todd v. Johnson

lation of a prior child support order and committing him to an intermittent term of incarceration of six…