Valerie Q. v. Arturo H.

Feb 1, 2008
Versions:48 A.D.3d 1049
850 N.Y.S.2d 758

Appeal from an order of the Family Court, Monroe County (Dennis S. Cohen, A.J.), entered March 7, 2006 in a proceeding pursuant to Family Court Act article 4. The order, inter alia, confirmed the finding of the Support Magistrate that respondent had willfully violated a prior child support order.

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

Memorandum: Respondent father appeals from an order finding him in willful violation of a prior child support order, committing him to a term of incarceration of six months in jail, and suspending the sentence of incarceration upon payment of $7,412.33 to the child support enforcement unit. Petitioner mother‘s submission of a certified calculation of all child support provided by the father constituted prima facie evidence of the father‘s failure to pay the child support required by the prior order (see Matter of Moore v Blank, 8 AD3d 1090 [2004], lv denied 3 NY3d 606 [2004]; see also Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]). We note that, although the father initially testified at the hearing before the Support Magistrate that he was unemployed during the period in which he failed to pay child support, he subsequently admitted at the hearing before Family Court that he had continued to work part-time during that period but failed to make child support payments. We therefore conclude that the father failed to meet his burden of producing “competent, credible evidence of his inability to make the required payments” (see Powers, 86 NY2d at 70; Matter of Fogg v Stoll, 26 AD3d 810 [2006]). Present—Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.