Opinion
1180 CAF 18–02173
12-20-2019
In the Matter of Rachel A. MOVSOVICH, Petitioner–Respondent, v. Jonathan H. WOOD, Respondent–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 4, respondent appeals from a decision that, inter alia, denied his objections to the order of the Support Magistrate determining that he willfully violated a prior order of child support, fixing the amount of his child support arrears, and recommending that he be placed on probation. Initially, we note that "[n]o appeal lies from a mere decision" ( Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 [4th Dept. 1987] ; see CPLR 5512[a] ). Nevertheless, in the absence of any prejudice, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the order entered upon that decision (see CPLR 5520[c] ; Matter of Crystiana M. [Crystal M.-Pamela J.], 129 A.D.3d 1536, 1537, 10 N.Y.S.3d 769 [4th Dept. 2015] ; Matter of Kessler v. Fancher, 112 A.D.3d 1323, 1323, 978 N.Y.S.2d 501 [4th Dept. 2013] ).
Contrary to respondent's contention, Family Court did not err in denying his objections to the Support Magistrate's determination that he willfully violated the prior child support order. It is well settled that "[t]here is a presumption that a respondent has sufficient means to support his or her ... minor children ..., and ... evidence that [a] respondent failed to pay support as ordered constitutes ‘prima facie evidence of a willful violation’ " ( Matter of Christine L.M. v. Wlodek K., 45 A.D.3d 1452, 1452, 846 N.Y.S.2d 849 [4th Dept. 2007], quoting Family Ct. Act § 454[3][a] ; see Matter of Wayne County Dept. of Social Servs. v. Loren, 159 A.D.3d 1504, 1504–1505, 70 N.Y.S.3d 151 [4th Dept. 2018] ; Matter of Barksdale v. Gore, 101 A.D.3d 1742, 1742, 955 N.Y.S.2d 912 [4th Dept. 2012] ). Here, petitioner established that respondent failed to pay the amount directed by the prior order, and the burden thus shifted to respondent to submit "some competent, credible evidence of his inability to make the required payments" ( Matter of Powers v. Powers, 86 N.Y.2d 63, 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; see Matter of Jelks v. Wright, 96 A.D.3d 1488, 1489, 947 N.Y.S.2d 694 [4th Dept. 2012] ). Respondent failed to meet that burden inasmuch as he failed to present evidence establishing that he made reasonable efforts to obtain gainful employment to meet his support obligation (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] ; Matter of Hunt v. Hunt, 30 A.D.3d 1065, 1065, 815 N.Y.S.2d 866 [4th Dept. 2006] ). He also failed to offer competent medical evidence in support of his contention that his alleged medical condition prevented him from maintaining employment (see Matter of Hwang v. Tam, 158 A.D.3d 1216, 1217, 69 N.Y.S.3d 906 [4th Dept. 2018] ; Matter of Commissioner of Cattaraugus County Dept. of Social Servs. v. Jordan, 100 A.D.3d 1466, 1467, 954 N.Y.S.2d 311 [4th Dept. 2012] ).
We have considered respondent's remaining contentions and conclude that none requires modification or reversal of the order.