Opinion
2013-10-4
In the Matter of Starr L. ROSHIA, Petitioner–Respondent, v. Christopher J. THIEL, Respondent–Appellant. (Appeal No. 1.).
Jennifer M. Lorenz, Lancaster, for Respondent–Appellant. Michael A. Siragusa, County Attorney, Buffalo (Kristen M. Maricle of Counsel), for Petitioner–Respondent.
Jennifer M. Lorenz, Lancaster, for Respondent–Appellant. Michael A. Siragusa, County Attorney, Buffalo (Kristen M. Maricle of Counsel), for Petitioner–Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, respondent father appeals from an order denying his objections to the order of the Support Magistrate, which denied his motions to vacate the underlying support order entered upon his default and to cap his unpaid child support arrears at $500 pursuant to Family Court Act § 413(1)(g). In appeal No. 2, the father appeals from an order confirming the Support Magistrate's determination that he willfully failed to obey the support order and, in appeal No. 3, the father appeals from an order that committed him to a term of incarceration of three months.
We reject the father's contention in appeal No. 1 that Family Court erred in denying his objections to the Support Magistrate's order insofar as it denied his motion to vacate the underlying support order entered upon his default. Although default orders are disfavored in cases involvingthe custody or support of children, and thus the rules with respect to vacating default judgments are “ ‘not to be applied as rigorously’ ” in those cases (Matter of Troy D.B. v. Jefferson County Dept. of Social Servs., 42 A.D.3d 964, 965, 839 N.Y.S.2d 877;see Matter of Gabriel v. Cooper, 26 A.D.3d 493, 494, 810 N.Y.S.2d 222;Matter of Patricia J. v. Lionel S., 203 A.D.2d 979, 979, 611 N.Y.S.2d 374), “that policy does not relieve the defaulting party of the burden of establishing a reasonable excuse for the default” ( Calle v. Calle, 28 A.D.3d 1209, 1209, 812 N.Y.S.2d 925). Here, the father's proffered excuse for the default was that he and the child's mother agreed that neither of them would pay child support for either child of their marriage, and he therefore did not appear in court because he believed that the court proceedings to determine his child support obligation were scheduled in error. That excuse is not reasonable, considering that the father consistently paid child support for the subject child, as directed by the underlying support order, for two years after the order was entered.
The father also has not demonstrated that he has a meritorious defense ( see Troy D.B., 42 A.D.3d at 965, 839 N.Y.S.2d 877). His contention that the underlying support order was invalid because it did not comply with Family Court Act § 413(1)(h) is without merit. That statute applies only to “[a] validly executed agreement or stipulation voluntarily entered into between the parties ... [and] presented to the court for incorporation in an order or judgment” (§ 413[1][h] ), and here the underlying support order was entered upon the father's default, not pursuant to any agreement or stipulation between the parties. We further reject the father's contention that the underlying support order is invalid because it imputed income to him without providing any calculations. Pursuant to Family Court Act § 413(1)(k), “[w]hen a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater.”
Contrary to the father's further contention in appeal No. 1, the court properly denied his objections to the Support Magistrate's order insofar as it denied his motion to cap his unpaid child support arrears at $500 pursuant to Family Court Act § 413(1)(g). The father should not be “ ‘financially rewarded for failing either to pay the order or to seek its modification’ ” (Matter of Dox v. Tynon, 90 N.Y.2d 166, 173, 659 N.Y.S.2d 231, 681 N.E.2d 398;see Matter of Onondaga County Dept. of Social Servs. v. Timothy S., 294 A.D.2d 27, 29–30, 741 N.Y.S.2d 622;Matter of Sutkowy v. J.B., 196 Misc.2d 1005, 1008–1009, 763 N.Y.S.2d 920;cf. Matter of Commissioner of Social Servs. v. Campos, 291 A.D.2d 203, 205, 737 N.Y.S.2d 341;Matter of Blake v. Syck, 230 A.D.2d 596, 597–599, 661 N.Y.S.2d 341,lv. denied90 N.Y.2d 811, 666 N.Y.S.2d 99, 688 N.E.2d 1381).
We reject the father's contention in appeal No. 2 that the court erred in confirming the Support Magistrate's finding that he willfully violated the support order. There is a statutory presumption that the father had sufficient means to support his child ( 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), 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). The father failed to meet that burden because he “failed to present evidence establishing that he made ‘reasonable efforts to obtain gainful employment’ ” (Matter of Christine L.M. v. Wlodek K., 45 A.D.3d 1452, 1452, 846 N.Y.S.2d 849). The Support Magistrate found that, although the father was capable of being employed, he did not make diligent efforts to obtain employment after he was terminated from his job. The Support Magistrate was in the best position to evaluate the father's credibility, and her determination is entitled to great deference ( see Matter of Kasprowicz v. Osgood, 101 A.D.3d 1760, 1761, 956 N.Y.S.2d 786,lv. denied20 N.Y.3d 863, 965 N.Y.S.2d 82, 987 N.E.2d 643). The father raises no contentions on appeal with respect to the order in appeal No. 3, committing him to a term of incarceration based on his willful violation of the support order. In view of our determination to affirm the order in appeal No. 2 concerning the willful violation, we likewise affirm the order in appeal No. 3.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.