Christine L.M. v. Wlodek K.

Nov 23, 2007
Appeal No. 2
Versions:45 A.D.3d 1452
846 N.Y.S.2d 849

In the Matter of Christine L.M., Respondent, v Wlodek K., Appellant. (Appeal No. 2.) [846 NYS2d 849]—Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), entered May 18, 2006 in a proceeding pursuant to Family Court Act article 4. The order, among other things, adjudged that respondent willfully failed to obey an order of support and sentenced him to three weeks in jail.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent appeals from an order finding that he willfully violated a prior order of child and spousal support and sentencing him to three weeks in jail. Although his appeal is not moot merely because he has served his sentence (see Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; Matter of Moore v Blank, 8 AD3d 1090, 1091 [2004], lv denied 3 NY3d 606 [2004]), we nevertheless conclude that it lacks merit. Based on the evidence before the Support Magistrate, we conclude that Family Court properly confirmed the finding that respondent willfully violated the prior order of support (see Matter of Hunt v Hunt, 30 AD3d 1065 [2006]; Matter of Rothfuss v Thomas, 6 AD3d 1145, 1146 [2004], lv denied 3 NY3d 603 [2004]). There is a presumption that a respondent has sufficient means to support his or her spouse and minor children (see Family Ct Act § 437; Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]; Hunt, 30 AD3d at 1065), and the evidence that respondent failed to pay support as ordered constitutes “prima facie evidence of a willful violation” (Family Ct Act § 454 [3] [a]). The burden then shifted to respondent to adduce “some competent, credible evidence of his inability to make the required payments” (Powers, 86 NY2d at 70; see Hunt, 30 AD3d at 1065), but he 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 obligations” (Matter of Fallon v Fallon, 286 AD2d 389 [2001]; see Hunt, 30 AD3d at 1065).

Present—Gorski, J.P., Smith, Centra, Lunn and Peradotto, JJ.