Opinion
2014-01-29
In the Matter of Alissa R. RHODES, respondent, v. Claude M. NELSON, appellant.
Del Atwell, East Hampton, N.Y., for appellant.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of disposition of the Family Court, Westchester County (Horowitz, J.), entered October 25, 2012, as, upon findings of fact of the same court (Jordan, S.M.), dated June 1, 2012, made after a hearing, inter alia, finding that he willfully violated a prior order of child support and recommending that he be incarcerated for a period of six months, confirmed the finding of willfulness and directed that he be incarcerated for a period of six months unless he paid the sum of $5,900.
ORDERED that the appeal from so much of the order of disposition as directed that the father be incarcerated for a period of six months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired ( see Matter of Smith v. Jeffers, 110 A.D.3d 904, 972 N.Y.S.2d 711); and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
Although the period of the father's incarceration has expired, the appeal from so much of the order of disposition as confirmed the finding that he willfully violated an order of child support is not academic in light of the enduring consequences which may potentially flow from an adjudication that a party has been found to have violated an order of the Family Court ( see Matter of Smith v. Jeffers, 110 A.D.3d 904, 972 N.Y.S.2d 711).
The Family Court did not err in finding that the father had willfully violated an order of child support. Evidence of the father's failure to pay child support as ordered constituted prima facie evidence of a willful violation ( see Family Ct. Act § 454[3][a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154). The burden then shifted to the father to offer competent, credible evidence of his inability to make the required payments ( see Matter of Powers v. Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154). The father, who the Support Magistrate found lacked credibility in his testimony regarding his search for employment, failed to sustain this burden. Although the father asserted that he was unemployed and had no money to pay child support, he did not present competent, credible evidence that he had actively sought employment sufficient to rebut the mother's prima facie showing ( see Matter of Logue v. Abell, 97 A.D.3d 582, 583, 947 N.Y.S.2d 329; Matter of Cooper v. Robertson, 69 A.D.3d 714, 714, 892 N.Y.S.2d 522; Matter of Teller v. Tubbs, 34 A.D.3d 593, 594, 824 N.Y.S.2d 387).
The father's remaining contentions are without merit. MASTRO, J.P., COHEN, MILLER and HINDS–RADIX, JJ., concur.