Opinion
822 CAF 20-00274
11-12-2021
In the Matter of WYOMING COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF Doris I. MURRAY, Petitioner-Respondent, v. Hulbert F. KATES, III, Respondent-Appellant.
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT. JAMES M. WUJCIK, COUNTY ATTORNEY, ATTICA (JANET L. BENSMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
JAMES M. WUJCIK, COUNTY ATTORNEY, ATTICA (JANET L. BENSMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, 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 father appeals from an order that, inter alia, effectively confirmed the determination of the Support Magistrate that the father willfully violated a prior order of child support.
Because the father failed to submit written objections to the order of the Support Magistrate, his challenges to the determinations of the Support Magistrate are not properly preserved (see Family Ct Act § 439 [e] ; see also Matter of Farruggia v. Farruggia , 125 A.D.3d 1490, 1490, 3 N.Y.S.3d 859 [4th Dept. 2015] ; Matter of White v. Knapp , 66 A.D.3d 1358, 1359, 886 N.Y.S.2d 527 [4th Dept. 2009] ). In any event, we reject the contention of the father that the Support Magistrate erred in imputing income to him for the purpose of calculating his child support obligation. It is well settled that a support magistrate has " ‘considerable discretion to ... impute an annual income to a parent’ " ( Lauzonis v. Lauzonis , 105 A.D.3d 1351, 1351, 964 N.Y.S.2d 796 [4th Dept. 2013] ; see Matter of Bashir v. Brunner , 169 A.D.3d 1382, 1383, 93 N.Y.S.3d 481 [4th Dept. 2019] ). Furthermore, "[c]hild support is determined by the parents’ ability to provide for their child rather than their current economic situation" ( Irene v. Irene [Appeal No. 2], 41 A.D.3d 1179, 1180, 837 N.Y.S.2d 797 [4th Dept. 2007] [internal quotation marks omitted]; see Bashir , 169 A.D.3d at 1383, 93 N.Y.S.3d 481 ), and a support magistrate's imputation of income will not be disturbed where, as here, there is record support for that determination (see Matter of Rapp v. Horbett , 174 A.D.3d 1315, 1317-1318, 105 N.Y.S.3d 734 [4th Dept. 2019] ; see also Matter of Drake v. Drake , 185 A.D.3d 1382, 1383, 127 N.Y.S.3d 661 [4th Dept. 2020], lv denied 36 N.Y.3d 909, 2021 WL 1181658 [2021] ). Contrary to the father's further contention, the Support Magistrate did not demonstrate any bias by imputing income to the father, and the Support Magistrate did not interfere with the presentation of the father's case or indicate any partiality or bias that would warrant reversal or modification of the order on appeal (see Matter of Deshotel v. Mandile , 151 A.D.3d 1811, 1812-1813, 59 N.Y.S.3d 209 [4th Dept. 2018] ; Matter of Cadle v. Hill , 23 A.D.3d 652, 653, 804 N.Y.S.2d 429 [2d Dept. 2005] ).
We reject the father's contention that petitioner failed to establish that he willfully violated the order of support. "A failure to pay support as ordered itself constitutes prima facie evidence of a willful violation ... [and] establishes [the] petitioner's direct case of willful violation, shifting to [the] respondent the burden of going forward ... To meet that burden, the respondent must offer some competent, credible evidence of his [or her] inability to make the required payments" ( Matter of Yamonaco v. Fey , 91 A.D.3d 1322, 1323, 937 N.Y.S.2d 787 [4th Dept. 2012], lv denied 19 N.Y.3d 803, 2012 WL 1538619 [2012] [internal quotation marks omitted]; see Matter of Wayne County Dept. of Social Servs. v. Loren , 159 A.D.3d 1504, 1505, 70 N.Y.S.3d 151 [4th Dept. 2018] ). Here, contrary to the father's contention, he failed to submit competent medical evidence to substantiate his claim that he was unable to work because of a disability (see Loren , 159 A.D.3d at 1505, 70 N.Y.S.3d 151 ; Matter of Hwang v. Tam , 158 A.D.3d 1216, 1217, 69 N.Y.S.3d 906 [4th Dept. 2018] ).
Finally, we conclude that the father failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" ( Matter of Reinhardt v. Hardison , 122 A.D.3d 1448, 1449, 997 N.Y.S.2d 564 [4th Dept. 2014] [internal quotation marks omitted]; see Matter of Kelley v. Holmes , 151 A.D.3d 1704, 1705, 56 N.Y.S.3d 738 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782573 [2017] ). We therefore reject his contention that he was deprived of effective assistance of counsel.