Foley v. Dwyer, 125
| Decision Date | 26 March 2021 |
| Docket Number | 125,CAF 19-01514 |
| Parties | In the Matter of Elizabeth FOLEY, Petitioner-Respondent, v. James L. DWYER, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
192 A.D.3d 1652
141 N.Y.S.3d 383 (Mem)
In the Matter of Elizabeth FOLEY, Petitioner-Respondent,
v.
James L. DWYER, Respondent-Appellant.
125
CAF 19-01514
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: March 26, 2021
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order denying his objections to the order of the Support Magistrate, which, inter alia, determined that he willfully violated
a prior order of child support. We affirm. A parent is presumed to have sufficient means to support his or her minor child (see Family Ct Act § 437 ; Matter of Monroe County Child Support Enforcement Unit v. Hemminger , 186 A.D.3d 1093, 1093, 127 N.Y.S.3d 381 [4th Dept. 2020] ; Matter of Wayne County Dept. of Social Servs. v. Loren , 159 A.D.3d 1504, 1504-1505, 70 N.Y.S.3d 151 [4th Dept. 2018] ). Thus, evidence that a respondent has failed to pay child support as ordered constitutes "prima facie evidence of a willful violation" ( Matter of Movsovich v. Wood , 178 A.D.3d 1441, 1441, 112 N.Y.S.3d 660 [4th Dept. 2019], lv denied 35 N.Y.3d 905, 2020 WL 3056327 [2020] [internal quotation marks omitted]; see § 454 [3] [a]).
Here, petitioner made out a prima facie case of a willful violation by establishing that respondent had not made certain support payments required by the prior order, a claim that respondent did not dispute (see Matter of Riggs v. VanDusen , 78 A.D.3d 1577, 1577, 910 N.Y.S.2d 633 [4th Dept. 2010] ). The burden thus shifted to respondent to offer "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 [1995] ; see Matter of Huard v. Lugo , 81 A.D.3d 1265, 1267, 917 N.Y.S.2d 459 [4th Dept. 2011], lv denied 16 N.Y.3d 710, 2011 WL 1584768 [2011] ). Respondent failed to meet that burden. Although respondent testified that he had no source of income and no assets, he was able to provide for his own food and shelter (see Matter of Fallon v. Fallon , 286 A.D.2d 389, 389, 728 N.Y.S.2d 725 [2d Dept. 2001] ) even though he had not applied for public assistance...
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