SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1348
CAF 11-02135
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
IN THE MATTER OF CATTARAUGUS COUNTY DEPARTMENT
OF SOCIAL SERVICES, ON BEHALF OF DAWN M.
LOVELESS, PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
JEFFERY M. GORE, RESPONDENT-APPELLANT.
EMILY A. VELLA, SPRINGVILLE, FOR RESPONDENT-APPELLANT.
STEPHEN D. MILLER, OLEAN, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Cattaraugus County
(Larry M. Himelein, J.), entered October 14, 2011 in a proceeding
pursuant to Family Court Act article 4. The order, inter alia,
sentenced respondent to four months in jail.
It is hereby ORDERED that said appeal from the order insofar as
it concerns commitment to jail is unanimously dismissed and the order
is otherwise affirmed without costs.
Memorandum: Respondent appeals from an order confirming the
determination of the Support Magistrate that respondent had willfully
violated a prior child support order and that directed that he be
incarcerated for a period of four months. We affirm the order with
respect to the willful violation of the support order. “There is a
presumption that a respondent has sufficient means to support his or
her . . . minor children . . . , and the evidence that respondent
failed to pay support as ordered constitutes ‘prima facie evidence of
a willful violation’ ” (Matter of Christine L.M. v Wlodek K., 45 AD3d
1452, quoting Family Ct Act § 454 [3] [a]; see Matter of Jelks v
Wright, 96 AD3d 1488, 1489). Here, petitioner met its burden of
demonstrating that respondent willfully violated the prior order by
submitting evidence that respondent failed to pay support pursuant to
the order, and the burden therefore shifted to respondent to submit
“some competent, credible evidence of his inability to make the
required payments” (Matter of Powers v Powers, 86 NY2d 63, 70; see
Jelks, 96 AD3d at 1489). Respondent failed to meet that burden
inasmuch as he did not present evidence establishing that he made
reasonable efforts to obtain gainful employment to fulfill his support
obligation (see Jelks, 96 AD3d at 1489; Matter of Hunt v Hunt, 30 AD3d
1065, 1065).
Respondent’s contention that a jail term was improperly imposed
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CAF 11-02135
is moot inasmuch as the commitment portion of the order has expired by
its own terms (see Matter of Alex A.C. [Maria A.P.], 83 AD3d 1537,
1538; Matter of Lomanto v Schneider, 78 AD3d 1536, 1537). We
therefore dismiss respondent’s appeal from that part of the order (see
Alex A.C., 83 AD3d at 1538).
Entered: December 28, 2012 Frances E. Cafarell
Clerk of the Court