Opinion
February 4, 1999
Appeal from the Family Court of Ulster County (Mizel, J.).
Pursuant to a December 1994 separation agreement, incorporated but not merged into a February 1996 judgment of divorce, respondent was obligated to pay $75 per week in child support to petitioner. When he failed to make the required payments, petitioner commenced this violation proceeding. Following a hearing before a Hearing Examiner, respondent then petitioned for a downward modification of his support obligation. At issue on appeal is Family Court's order affirming the Hearing Examiner's finding of willfulness and its denial of respondent's application for a downward modification.
We affirm. A finding of a willful violation of a child support order "requires proof of both the ability to pay support and the failure to do so" ( Matter of Powers v. Powers, 86 N.Y.2d 63, 68). Having established her direct case of a willful violation with proof that respondent failed to pay as ordered ( see, Family Ct Act § 454 [a]; Matter of Tarbell v. Tarbell, 241 A.D.2d 702, 702-703), the burden shifted to respondent "to offer some competent, credible evidence of his inability to make the required payments" ( Matter of Powers v. Powers, supra, at 69-70; see, Matter of Shaver v. Shaver, 232 A.D.2d 813, lv denied 89 N.Y.2d 808). Since respondent failed to meet that burden here, we find no basis upon which to disturb Family Court's order.
Respondent claims that numerous medical and psychological infirmities prohibited him from finding suitable employment. In support of this claim, respondent submitted a myriad of medical records documenting that he has suffered from various ailments over the years, such as coronary artery disease and gastrointestinal problems. But neither these records nor the related hearing testimony of respondent and his friends that he had suffered from health problems in the past constitutes competent medical proof that respondent was unable to obtain employment. Quite simply, no competent medical proof was offered proving that respondent was in any way disabled from performing his trade as a commercial real estate broker or any other trade ( see, Matter of Reed v. Reed, 240 A.D.2d 951, 952). Indeed, with one minor exception — respondent was advised to "rest as much as possible" while suffering from an upper respiratory infection on April 17, 1997 — none of the medical records remotely suggests that respondent could not, or should not, work. In fact, despite his medical problems, respondent was capable of renovating the house in which he lived rent free, maintaining the two-acre parcel upon which it stood and performing gardening tasks at a rate of $8 per hour to pay off a loan.
Respondent candidly concedes that "[t]rue, there was no expert testimony that any of [h]is conditions was disabling enough to prevent [him] from working". Quite unabashedly, however, he then criticizes Family Court for its "[unwillingness] to make the effort" to consult medical journals and dictionaries in order to interpret the medical evidence which, respondent claims, would have proven that he was unable to meet his $75 weekly child support obligation. Respondent's unfounded criticism of the court ignores the well-settled principle that the burden rested on him, not the court, to establish his inability to pay by competent proof.
Respondent further claims that "business difficulties" contributed to his financial situation and that Family Court should have taken judicial notice of the fact that the closing of a local manufacturing plant had a deleterious effect on the local real estate market and thus his "prospects of financial success". We again note that the burden rested on respondent to prove his inability to make the required payments, which he failed to do. The record indicates that after being terminated from a real estate position he held for over a decade because he was not generating business and after a two-month association with another real estate agency — which ended not because of a depressed real estate market but because of a commission dispute — respondent made but a single attempt to work at another real estate agency. Thereafter, respondent made no other inquiries or attempts to seek employment either within or outside the real estate industry.
Finally, under these circumstances, we will not disturb the finding that respondent failed to meet his burden of showing a change in circumstances sufficient to warrant a downward modification of child support.
Mikoll, J. P., Crew III, Yesawich Jr. and Spain, JJ., concur.
Ordered that the order is affirmed, without costs.