State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 2, 2016 520608
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In the Matter of JONATHAN
LEDER,
Respondent,
v MEMORANDUM AND ORDER
DANIELLE LEDER,
Appellant.
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Calendar Date: April 25, 2016
Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.
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Daniel Gartenstein, Kingston, for appellant.
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Clark, J.
Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered February 5, 2015, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 4, to hold respondent in willful violation of a prior
order of support.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a son and a daughter
(born in 2008 and 2010, respectively). Pursuant to a March 2014
order of support, the mother was directed to pay $865 per month
in child support and $4,325 in retroactive child support. In
August 2014, the father commenced this Family Ct Act article 4
proceeding alleging that the mother had failed to make any
payment towards her child support obligation and, therefore, she
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had willfully violated the prior order of support.1 Following a
hearing, a Support Magistrate found that the mother had failed to
comply with the support order and that her violation was willful.
Family Court confirmed those findings after a confirmation
hearing and sentenced the mother to a 120-day term of
incarceration, suspended on the condition that she timely pay her
regular support obligation, as well as $335 a month toward
arrears. The mother appeals.
We affirm. A parent's "failure to pay support as ordered
. . . constitutes 'prima facie evidence of a willful violation'"
(Matter of Powers v Powers, 86 NY2d 63, 69 [1995], quoting Family
Ct Act § 454 [3] [a]; see Matter of Wilson v LaMountain, 83 AD3d
1154, 1155 [2011]). Upon the presentation of such prima facie
evidence, the burden shifts to the respondent to rebut the
evidence of willfulness by "offer[ing] some competent, credible
evidence of his [or her] inability to make the required payments"
(Matter of Powers v Powers, 86 NY2d at 69-70; see Matter of
Vickery v Vickery, 63 AD3d 1220, 1221 [2009]).
Here, the uncontroverted testimony of an employee of the
Ulster County Child Support Enforcement Unit established that the
mother had not complied with the prior support order and owed
over $13,000 in child support arrears, thereby shifting the
burden to the mother to rebut the evidence of her willful
violation (see Matter of Santana v Gonzalez, 90 AD3d 1198, 1200
[2011]; Matter of Wilson v LaMountain, 83 AD3d at 1155-1156).
The mother failed to satisfy this burden. Although the mother,
who was unemployed at the time of the confirmation hearing,
presented evidence that she had previously applied for jobs at
various news and publishing companies, as well as certain nail
salons, she also testified that she had discontinued her efforts
to obtain employment and was instead attempting to raise funds to
start her own publication. The mother offered no evidence
demonstrating that she was incapable of supporting her children
by securing and maintaining gainful employment, even of a
temporary nature, while simultaneously pursuing her publication
1
The mother unsuccessfully sought a downward modification
of her monthly child support obligation.
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project. Moreover, the mother's proof established that she
resided, free of charge, in a house owned by a trust that was
created for her benefit, that the trust paid the mortgage and
taxes on the home and that she collected $1,100 a month in rent
from tenants, who also resided in that house. Under these
circumstances, and according due deference to Family Court's
credibility assessments (see Matter of Heyn v Burr, 19 AD3d 896,
898 [2005]), ample evidence supports Family Court's determination
that the mother willfully violated the order of support (see
Matter of Ulster County Support Collection Unit v Oliver, 135
AD3d 1114, 1115-1116 [2016]; Matter of Thomas v Sylvester, 95
AD3d 1488, 1489 [2012]).
Lahtinen, J.P., Rose, Lynch and Aarons, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court