Huard v. Lugo

• Decision Date: 10 February 2011
• Citation: 917 N.Y.S.2d 459,81 A.D.3d 1265
• Parties: In the Matter of Shannon HUARD, Petitioner-Respondent, v. Jose LUGO, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 459 81 A.D.3d 1265 In the Matter of Shannon HUARD, Petitioner-Respondent, v. Jose LUGO, Respondent-Appellant. Supreme Court, Appellate Division, Fourth Department, New York. Feb. 10, 2011.

Charles J. Greenberg, Buffalo, for Respondent-Appellant.

PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.

MEMORANDUM:

Respondent father appeals from an order confirming the determination of the Support Magistrate that he willfully violated an order of child support and sentencing him to a term of incarceration of 90 days. The father contends that the Support Magistrate erred in allowing him toproceed pro se at the fact-finding hearing. We conclude that the father failed to preserve that contention for our review.

We note at the outset that the father did not file any objections to the Support Magistrate's order ( see generally Family Ct. Act § 439[e] ). In Matter of Oswego County Support Collection Unit v. Richards (305 A.D.2d 1101, 759 N.Y.S.2d 723, lv. denied 100 N.Y.2d 637, 769 N.Y.S.2d 197, 801 N.E.2d 418), we determined that, because the respondent failed to file objections to the Hearing Examiner's order finding willfulness and recommending commitment pursuant to Family Court Act § 439 (former [e] ), he "waiv[ed] his right to appellate review of the finding of a willful violation...." Section 439(e), however, was revised in 2004 by providing that a determination of willful violation of a support order where commitment is recommended does not constitute a final order ( see L 2004, ch. 336, § 3; Assembly Mem in Support, Bill Jacket, L. 2004, ch. 336, at 4-5). "A determination by a support magistrate that a person is in willful violation of a support order and recommending commitment has no force and effect until confirmed by a Judge of the Family Court ... Such a determination by a support magistrate does not constitute a final order to which a party may file written objections" ( Matter of Dakin v. Dakin, 75 A.D.3d 639, 639-640, 904 N.Y.S.2d 677, lv. dismissed 15 N.Y.3d 905, 912 N.Y.S.2d 572, 938 N.E.2d 1007; see § 439[a], [e] ). A party's "sole remedy" is to appeal from the final order of Family Court ( Dakin, 75 A.D.3d at 640, 904 N.Y.S.2d 677). Thus, to the extent that Matter of Oswego County Support Collection Unit v. Richards requires a party to file objections in order to preserve a contention regarding such a determination, it should no longer be followed.

We conclude, however, that the father failed to preserve his contention for our review under the "normal rules of preservation" because he failed to raise it before Family Court at the confirmation proceeding, where he was represented by counsel ( Matter of Michelle F.F. v. Edward J.F., 50 A.D.3d 348, 350, 855 N.Y.S.2d 446, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084). In any event, the father's contention lacks merit.

We reject the father's further contention that petitioner mother failed to present clear and convincing evidence that he willfully violated the support order. In order to establish a willful violation of a support order, there must be "proof of both the ability to pay support and the failure to do so" ( Matter of Powers v. Powers, 86 N.Y.2d 63, 68, 629 N.Y.S.2d 984, 653 N.E.2d 1154). The father is presumed to have sufficient means to support his child ( see Family Ct. Act § 437), and his failure to pay support constitutes "prima facie evidence of a willful violation" (§ 454[3][a]; ...