In the Matter of STACIA D. HEYN, Respondent, v TIMOTHY T. BURR, Appellant. (And Another Related Proceeding.)
Appellate Division of the Supreme Court of New York, Third Department
798 NYS2d 744
By the terms of a July 2001 order of Family Court, respon
After respondent was laid off from his new job, he began collecting unemployment insurance benefits and continued to satisfy his support obligations. However, once those benefits ended, respondent, who remained unemployed, ceased making payments to petitioner and commenced this proceeding seeking to have the child support order modified. Petitioner answered with a cross petition alleging respondent‘s willful violation of the aforementioned July 2001 order. Following a hearing on both petitions, a Support Magistrate issued a March 2003 order in which he dismissed respondent‘s application for a downward modification, found respondent in willful violation and recommended a term of incarceration. Respondent filed objections to that part of the Support Magistrate‘s determination which dismissed respondent‘s modification petition. The objections were denied by Family Court and, upon appeal, this Court affirmed (6 AD3d 781, 782-783 [2004]).
After disposition of the appeal, Family Court conducted a confirmation hearing concerning the willful violation aspect of the Support Magistrate‘s March 2003 order. Thereafter, the court issued two orders in which it confirmed the Support Magistrate‘s willful violation finding and committed respondent to the custody of the Otsego County Sheriff on intermittent weekends for a period of four months. After serving two weekends of his incarceration, respondent moved to purge himself of the commitment order, but said motion was denied by an August 2004 order of Family Court. Respondent now appeals from all three of Family Court‘s orders.1
We turn, as an initial matter, to respondent‘s claim that petitioner failed to adequately establish his willful violation of Family Court‘s July 2001 order of support.2 In order to establish a willful violation, a petitioner must prove that the respondent has not only failed to pay court-ordered support, but also that
Under the circumstances of the instant case, however, we conclude that the commitment order should be suspended. Respondent has been historically compliant with the terms of the support order (compare Matter of Bucek v Rogers, 301 AD2d 973, 974-975 [2003]). Moreover, it is undisputed that respondent was current in all of his support obligations, including arrearages which accrued during the span of his violation, when he moved to purge himself of the commitment order (see Matter of Russo v Goldbaum, 215 AD2d 763, 764 [1995]). Although the Support Magistrate made reference to a purge provision in his March 2003 order—prior to confirmation by Family Court—Family Court‘s subsequent commitment order itself contained no language permitting respondent to purge himself of the contempt. Notably, the purpose of respondent‘s incarceration was remedial and inured to the benefit of petitioner (see Davenport v Guardino, 166 AD2d 349, 350 [1990]; see generally Hicks v Feiock, 485 US 624 [1988]). Therefore, under these particular circumstances, we modify the order of commitment by suspending the order on the condition that respondent remain current in his support obligations (see Matter of Rosa v Borowski, 101 AD2d 668, 669 [1984]; see also Matter of Bavisotto v Bavisotto, 193 AD2d 1121, 1121-1122 [1993]). In the event that re
Finally, inasmuch as respondent has essentially been afforded all the relief to which he would have been entitled had his motion to purge been granted, we dismiss respondent‘s appeal from the August 2004 order as academic (cf. Matter of Sales v Brozzo, 3 AD3d 807, 807 [2004], lv denied 2 NY3d 706 [2004]; Matter of Madison County Support Collection Unit v Drennan, 156 AD2d 883 [1989]; see also Matter of Zullo v Horn, 10 AD3d 614, 616 [2004]).
Mercure, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the order entered June 24, 2004 is modified, on the facts, without costs, by suspending enforcement of said order upon the condition that respondent remain current in his support obligation and, as so modified, affirmed. Ordered that the order entered July 6, 2004 is affirmed, without costs. Ordered that the appeal from the order entered August 27, 2004 is dismissed, as academic, without costs.