Ball v. Marshall

• Decision Date: 08 February 2013
• Parties: In the Matter of Andrea J. BALL, Petitioner–Respondent, v. Scott D. MARSHALL, Respondent–Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 1270

959 N.Y.S.2d 371

2013 N.Y. Slip Op. 00871

In the Matter of Andrea J. BALL, Petitioner–Respondent,

v.Scott D. MARSHALL, Respondent–Appellant. (Appeal No. 2.)

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

Feb. 8, 2013.

Davis Law Office, Oswego (Stephanie N. Davis of Counsel), for Respondent–Appellant.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.

MEMORANDUM:

Respondent father appeals from an amended order of Family Court confirming the determination of the Support Magistrate that he willfully violated an order of child support. The Support Magistrate's amended order determining that there was a willful violation was issued after the father failed to appear for the hearing on the violation petition. The father's contention that he was denied his right to a hearing on the violation petition is not properly before us on this appeal from the amended order of Family Court. Rather, the proper procedure for challenging the Support Magistrate's amended order entered upon the father's default is by way of a motion to vacate that amended order pursuant to CPLR 5015(a) ( see Matter of Chautauqua County Dept. of Social Servs. v. Rita M.S., 94 A.D.3d 1509, 1510, 943 N.Y.S.2d 332), and the father failed to make such a motion ( see Matter of Garland v. Garland, 28 A.D.3d 481, 481–482, 811 N.Y.S.2d 581;Matter of Wideman v. Murley, 155 A.D.2d 841, 842, 548 N.Y.S.2d 102). We note in any event that, on the merits, the father is statutorily presumed to have sufficient means to support his child ( seeFamily Ct. Act § 437; Matter of Christine L.M. v. Wlodek K., 45 A.D.3d 1452, 1452, 846 N.Y.S.2d 849), and evidence of the failure to pay support as ordered constitutes “prima facie evidence of a willful violation” (§ 454[3][a]; see Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154;Matter of Jelks v. Wright, 96 A.D.3d 1488, 1489, 947 N.Y.S.2d 694). Once the mother made a prima facie showing of a willful violation, the burden shifted to the father to rebut that showing ( see Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154). Having failed to appear at the hearing before the Support Magistrate, the father may not now argue that he was denied his right to rebut the mother's prima facie showing of a willful violation.

We reject the father's further contention that he was denied due process of law because the Support Magistrate failed to advise him of his rights in the violation proceeding prior to the hearing conducted in the father's absence. The father does not dispute that he was served with a summons and violation petition, nor does he contend that the petition was deficient in notice. In any event, the summons and petition are in conformance with the requisite provisions of Family Court Act § 453 ( cf. Matter of Stagnar v. Stagnar, 98 A.D.2d 983, 984, 470 N.Y.S.2d 224;see...