Cattaraugus Cnty. Dep't of Soc. Servs. ex rel. Loveless v. Gore

• Decision Date: 28 December 2012
• Citation: 2012 N.Y. Slip Op. 09219,955 N.Y.S.2d 910,101 A.D.3d 1739
• Parties: In the Matter of CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of Dawn M. LOVELESS, Petitioner–Respondent, v. Jeffery M. GORE, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1739
955 N.Y.S.2d 910
2012 N.Y. Slip Op. 09219

In the Matter of CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of Dawn M. LOVELESS, Petitioner–Respondent,
v.
Jeffery M. GORE, Respondent–Appellant.

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

Dec. 28, 2012.

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.
Emily A. Vella, Springville, for Respondent–Appellant.

Stephen D. Miller, Olean, for Petitioner–Respondent.

MEMORANDUM:

[101 A.D.3d 1739]Respondent appeals from an order confirming the determination of the Support Magistrate that respondent had willfully

[955 N.Y.S.2d 911]

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[101 A.D.3d 1740]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 A.D.3d 1452, 846 N.Y.S.2d 849, quoting Family Ct. Act § 454[3][a]; seeMatter of Jelks v. Wright, 96 A.D.3d 1488, 1489, 947 N.Y.S.2d 694). 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 N.Y.2d 63, 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;see Jelks, 96 A.D.3d at 1489, 947 N.Y.S.2d 694). 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 A.D.3d at 1489, 947 N.Y.S.2d 694;Matter of Hunt v. Hunt, 30 A.D.3d 1065, 1065, 815 N.Y.S.2d 866).

Respondent's contention that a jail term was improperly imposed 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 A.D.3d 1537, 1538, 921 N.Y.S.2d 759;Matter of Lomanto v. Schneider, 78 A.D.3d 1536, 1537, 911 N.Y.S.2d 531). We...