SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
492
CAF 12-00306
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.
IN THE MATTER OF JENNIFER S. DAVIS,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
ROBERT P. DRIGGS, III, RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
OAK ORCHARD LEGAL SERVICES A DIVISION OF NEIGHBORHOOD LEGAL SERVICES,
INC., BATAVIA (JOHN M. ZONITCH OF COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered February 7, 2012 in a proceeding pursuant to
Family Court Act article 4. The order, inter alia, confirmed the
determination of the Support Magistrate that respondent willfully
failed to obey a court order.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order confirming
the determination of the Support Magistrate that he willfully
disobeyed an order to pay child support. We agree with Family Court
that the father failed to present “some competent, credible evidence
of his inability to make the required payments” and thus failed to
rebut the presumption of a willful violation (Matter of Powers v
Powers, 86 NY2d 63, 70). We reject the father’s contention that he
was deprived of effective assistance of counsel based on his
attorney’s failure to present evidence in admissible form rebutting
the presumption. Viewed in its totality, the representation received
by the father was meaningful, and we note that he did not suffer any
actual prejudice as a result of the claimed deficiency (see Matter of
Kemp v Kemp, 19 AD3d 748, 751, lv denied 5 NY3d 707). Although the
father’s attorney had difficulty before the Support Magistrate in
introducing admissible evidence regarding the father’s alleged
disability and, indeed, none of the medical records introduced by the
father’s attorney was admitted in evidence by the Support Magistrate,
the record establishes that the court itself considered those
documents and admitted them in evidence during its consideration of
the penalty to be imposed.
Entered: May 3, 2013 Frances E. Cafarell
Clerk of the Court