Matter of Gillison v. Gillison

Nov 26, 2014
2013-00727
Versions:122 A.D.3d 926
995 N.Y.S.2d 750

Appeal from an order of the Family Court, Westchester County (David Klein, J.), entered September 27, 2012. The order confirmed the finding of a Support Magistrate that the father willfully failed to obey an order of the court, and committed him to the Westchester County Correctional Facility for a period of six months.

Ordered that the appeal from so much of the order as committed the father to the Westchester County Correctional Facility for a period of six months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Rodriguez v Suarez, 93 AD3d 730 [2012]); and it is further,

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

Evidence of the father‘s failure to pay child support as ordered constituted prima facie evidence of a willful violation (see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63, 69 [1995]; Matter of McMinn v Taylor, 118 AD3d 887, 888 [2014]). The burden then shifted to the father to offer competent, credible evidence of his inability to make the required payments (see Matter of Powers v Powers, 86 NY2d at 69). The father, who the Support Magistrate found lacked credibility in his testimony regarding his search for employment, did not sustain this burden, as he failed to present competent, credible evidence that he made reasonable efforts to obtain gainful employment to meet his child support obligation (see Matter of McMinn v Taylor, 118 AD3d at 888; Matter of Seleznov v Pankratova, 57 AD3d 679, 681 [2008]; Matter of Vasconcellos v Vasconcellos, 37 AD3d 613 [2007]; Matter of Teller v Tubbs, 34 AD3d 593, 594 [2006]).

The father‘s contention that he was deprived of effective assistance of counsel is without merit, as the record reveals that he received meaningful representation (see Matter of McMinn v Taylor, 118 AD3d at 888; Matter of Phillips v Giddings, 96 AD3d 950, 951-952 [2012]; Matter of Rodriguez v Suarez, 93 AD3d at 730).

The father‘s remaining contention is not properly before this Court.

Dillon, J.P., Miller, Maltese and Duffy, JJ., concur.