Brewster v. Davidson

• Citation: 173 A.D.3d 1176,101 N.Y.S.3d 621 (Mem)
• Decision Date: 26 June 2019
• Docket Number: Docket No. F–2097–15/17A,2018–02544
• Parties: In the Matter of Nadia Lanakaye BREWSTER, Respondent, v. Shaun C. DAVIDSON, Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1176

101 N.Y.S.3d 621 (Mem)

In the Matter of Nadia Lanakaye BREWSTER, Respondent,

v.Shaun C. DAVIDSON, Appellant.

2018–02544

Docket No. F–2097–15/17A

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

Submitted—May 28, 2019

June 26, 2019

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.

MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Nassau County (Danielle M. Peterson, J.), dated January 18, 2018. The order of commitment, in effect, confirmed an order of the same court (Tomasina C. Mastroianni, S.M.) dated December 21, 2017, made after a hearing, finding that the father willfully violated a prior order of child support, and committed him to the custody of the Nassau County Correctional Facility for a period of 30 days unless he paid the purge amount of $ 10,000.

ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 30 days is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Dezil v. Garlick, 136 A.D.3d 904, 905, 25 N.Y.S.3d 337 ); and it is further,

ORDERED that the order of commitment is affirmed insofar as reviewed, without costs or disbursements.

The mother, the custodial parent of the parties' two children, commenced this proceeding alleging that the father was in willful violation of an order of child support dated April 28, 2016. Following a hearing, the Support Magistrate issued an order finding that the father's failure to pay child support was willful. In an order of commitment dated January 18, 2018, the Family Court, in effect, confirmed the Support Magistrate's order and committed the father to the custody of the Nassau County Correctional Facility for a period of 30 days unless he paid the purge amount of $ 10,000. The father appeals from the order of commitment.

Although the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 30 days must be dismissed as academic, the appeal from so much of the order of commitment as, in effect, confirmed the finding that the father was in willful violation of the order of support is not academic in light of the enduring consequences which could flow from the finding that he violated the order of support (see Matter of Dezil v. Garlick, 136 A.D.3d 904, 905, 25 N.Y.S.3d 337 ; Matter of Westchester County Commr. of Social Servs. v. Perez, 71 A.D.3d 906, 907, 897 N.Y.S.2d 192 ).

We agree with the Family Court's determination, in effect, to confirm the Support Magistrate's finding that the father willfully violated the order of support. " ‘Failure to pay support, as ordered, constitutes prima facie evidence of a willful violation’ " ( Matter of Espinal–Melendez v. Vasquez, 160 A.D.3d 852, 854, 74 N.Y.S.3d 82, quoting Matter of Schad v. Schad, 158 A.D.3d 705, 706, 70 N.Y.S.3d 568 ; see Family Ct. Act § 454[3][a] ). "Thus, proof that a respondent has failed to pay support as ordered establishes the petitioner's direct case of willful violation, shifting the burden to the respondent to offer competent, credible evidence of his or her inability to make the payments as ordered" ( Matter of Schad v. Schad, 158 A.D.3d at 706, 70 N.Y.S.3d 568 ; see Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). Here, after the mother established, prima facie, that the father failed to meet his support obligation set forth in the order of support, the father failed to come forward with competent, credible evidence to establish his defense of an inability to pay (see Family Ct. Act § 455[5] ; Matter of Olivari v. Bianco, 161 A.D.3d 983, 984, 77...