Ana B. v. Hector N.

• Decision Date: 13 November 2012
• Citation: 100 A.D.3d 476,953 N.Y.S.2d 587,2012 N.Y. Slip Op. 07600
• Parties: In re ANA B., Petitioner–Respondent, v. HECTOR N., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 476

953 N.Y.S.2d 587

2012 N.Y. Slip Op. 07600

In re ANA B., Petitioner–Respondent,

v.HECTOR N., Respondent–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Nov. 13, 2012.

Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.

MAZZARELLI, J.P., MOSKOWITZ, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.

Order, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about February 3, 2012, which adopted the fact-finding determination of the Support Magistrate, dated February 3, 2012, that respondent father had willfully violated a child support order, and committed him to the New York City Department of Correction (DOC) for a term of four months or until he pays $2,370 to the Child Support Collection Unit, unanimously affirmed, without costs.

Respondent's testimony acknowledging the child support arrears constituted prima facie evidence of a willful violation of the support order, which he failed to rebut with competent, credible evidence of his inability to make the required payments ( seeFamily Ct. Act § 454[3][a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ). There is no basis to disturb the Support Magistrate's findings, which are supported by the record and based largely on his assessments of credibility ( see Matter of Maria T. v. Kwame A., 35 A.D.3d 239, 240, 826 N.Y.S.2d 42 [1st Dept.2006] ). The record does not show that there was any bias on the part of the Support Magistrate.

We reject respondent's contention that child support arrears should have been fixed at $500 pursuant to Family Court Act § 413(1)(g). Respondent failed to provide any documentation establishing his income from September 2009 to the date of the filing of the enforcement petition ( cf. Matter of Commissioner of Social Servs. v. Campos, 291 A.D.2d 203, 204–205, 737 N.Y.S.2d 341 [1st Dept.2002] ). He also failed to make an application to reduce or annul his child support arrears ( seeFamily Court Act § 451[1]; Matter of Commissioner of Dept. of Social Servs. of the City of N.Y. v. Charles B., 91 A.D.3d 455, 456, 935 N.Y.S.2d 881 [1st Dept.2012] ).

The Family Court providently exercised its discretion in committing respondent to the DOC for a term of four months ( see Matter of Gorsky v. Kessler, 79 A.D.3d 746, 747, 912 N.Y.S.2d 649 [2d Dept.2010] ). Indeed, the court had the authority to commit respondent “to jail for a term not to exceed six...