Falk v. Owen

May 30, 2006
Versions:29 A.D.3d 991
816 N.Y.S.2d 533

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 the Family Court, Westchester County (Edlitz, J.), entered August 24, 2004, as, in effect, confirmed an order of the same court (Furman, S.M.), entered July 27, 2004, which, after a hearing, found that he willfully failed to obey an order of support of the same court (Furman, S.M.), entered February 13, 2004, and thereupon held him in civil contempt of court.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The father’s failure to pay child support as ordered constituted “prima facie evidence of a willful violation” of the Family Court’s February 13, 2004 order of support (Family Ct Act § 454 [3] [a]). The burden then shifted to the father “to offer competent, credible evidence of his inability to comply with that order” (Matter of Watson v Watson, 21 AD3d 497, 498 [2005]; see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]). The father admitted that in January 2004 he voluntarily left his job in Westchester County and moved to Otsego County, where he obtained employment at less than half the salary he had been earning in Westchester County. The father’s assertion that he felt obliged to relocate in order to care for his 60-year-old mother, who had back problems that required surgery, did not constitute sufficient proof that the change in his financial circumstances was unavoidable, and was especially unconvincing in light of the evidence that he had two sisters who already lived in the immediate vicinity of his mother (see Matter of Reach v Reach, 307 AD2d 512 [2003]; Matter of Diamond v Diamond, 254 AD2d 288, 289 [1998]; Adinolfi v Adinolfi, 242 AD2d 311 [1997]; Matter of Doyle v Doyle, 230 AD2d 795, 796 [1996]). Thus, the father “failed to sustain his burden to rebut the prima facie evidence of willfulness by showing sufficient proof of his inability to pay” (Matter of Watson v Watson, supra at 498). Accordingly, the Support Magistrate’s finding that the father willfully failed to obey the order of support “was supported by the record and properly confirmed by the Family Court” (Matter of Zielazny v Zielazny, 271 AD2d 539 [2000]). Prudenti, P.J., Florio, Krausman and Mastro, JJ., concur.