Opinion
525553
10-18-2018
In the Matter of Tanya SAYYEAU, Respondent, v. Justin NOURSE, Appellant.
Lawrence Brown, Bridgeport, for appellant. Christopher Hammond, Cooperstown, for respondent.
Lawrence Brown, Bridgeport, for appellant.
Christopher Hammond, Cooperstown, for respondent.
Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from an order of the Family Court of Madison County (O'Sullivan, J.), entered August 15, 2017, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior support obligation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 2002 and 2004). Pursuant to the parties' May 2016 judgment of divorce, the father was ordered to pay child support in the amount of $55 per month. In March 2017, the mother commenced this proceeding alleging that the father was in violation of his support obligation. Following a hearing, a Support Magistrate found the father to be in willful violation of his support obligation and entered a money judgment directing payment of $444 in arrears. The father filed an objection to the Support Magistrate's order of disposition, which Family Court denied. The father appeals, and we affirm.
"[A] parent is presumed to have the means to support his or her children, and proof of a failure to pay child support as ordered constitutes prima facie evidence of a willful violation" ( Matter of Ulster County Support Collection Unit v. Oliver , 135 A.D.3d 1114, 1115, 22 N.Y.S.3d 707 [2016] [internal quotation marks and citations omitted]; see Family Ct. Act §§ 454[3][a] ; 437; Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ). The father's admission that he failed to make the required child support payments constituted prima facie evidence of his willful violation of the support order. The burden then shifted to the father to rebut this showing by offering "competent, credible evidence of his inability to make the required payments" ( Matter of Powers v. Powers, 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; see Matter of Dench–Layton v. Dench–Layton, 151 A.D.3d 1199, 1201, 56 N.Y.S.3d 598 [2017] ; Matter of Leder v. Leder, 140 A.D.3d 1228, 1229, 33 N.Y.S.3d 502 [2016] ).
The father testified that his income is limited to monthly Social Security disability benefits, and claimed that he is unable to make the required payments due to his poor health. Although the Support Magistrate credited the father's testimony regarding his medical history and related health issues, no competent medical evidence was presented that the father's physical ailments prevented him from maintaining employment (see Matter of Hwang v. Tam, 158 A.D.3d 1216, 1217, 69 N.Y.S.3d 906 [2018] ; Matter of Wilson v. Lamountain , 83 A.D.3d 1154, 1156, 921 N.Y.S.2d 362 [2011] ; Matter of Lewis v. Cross, 72 A.D.3d 1228, 1230, 897 N.Y.S.2d 783 [2010] ; Matter of Sutton–Murley v. O'Connor, 61 A.D.3d 1054, 1055, 877 N.Y.S.2d 480 [2009] ). To that end, the fact that the father is receiving Social Security benefits does not preclude a finding that he is capable of working (see Matter of Wilson v. Lamountain, 83 A.D.3d at 1156, 921 N.Y.S.2d 362 ; Matter of Aranova v. Aranova, 77 A.D.3d 740, 745, 909 N.Y.S.2d 125 [2010] ; Matter of Bukovinsky v. Bukovinsky, 299 A.D.2d 786, 787–788, 751 N.Y.S.2d 92 [2002], lv dismissed 100 N.Y.2d 534, 762 N.Y.S.2d 875, 793 N.E.2d 412 [2003] ). Moreover, the father admitted that he used his available funds to pay expenses other than his child support obligation (see Matter of Olivari v. Bianco, 161 A.D.3d 983, 984, 77 N.Y.S.3d 113 [2018] ; Matter of Reynolds v. Oster, 192 A.D.2d 794, 797, 596 N.Y.S.2d 545 [1993], appeal dismissed 81 N.Y.2d 1068, 601 N.Y.S.2d 587, 619 N.E.2d 665 [1993] ; Matter of Department of Social Servs. of Fulton County v. Hillock, 96 A.D.2d 625, 625, 464 N.Y.S.2d 877 [1983] ), and there is no evidence that he has made any attempt, however minimal, to comply with the child support order. According deference to the Support Magistrate's credibility assessments (see Matter of Dench–Layton v. Dench–Layton, 151 A.D.3d at 1202, 56 N.Y.S.3d 598 ), we find no basis to disturb the finding that the father failed to produce credible and competent proof of his inability to make the required payments (see id. at 1202–1203, 56 N.Y.S.3d 598 ; Matter of Ulster County Support Collection Unit v. Oliver, 135 A.D.3d at 1116, 22 N.Y.S.3d 707 ; Matter of Christiani v. Rhody, 90 A.D.3d 1090, 1092, 933 N.Y.S.2d 443 [2011], lv denied 18 N.Y.3d 809, 2012 WL 1033636 ; Matter of Wilson v. Lamountain, 83 A.D.3d at 1156, 921 N.Y.S.2d 362 ; Matter of Chamberlain v. Chamberlain, 69 A.D.3d 1249, 1250, 893 N.Y.S.2d 704 [2010] ).
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur.
ORDERED that the order is affirmed, without costs.