In the Matter of Tandy Renee Wilson v. Lamountain

• Decision Date: 07 April 2011
• Citation: 921 N.Y.S.2d 362,83 A.D.3d 1154,2011 N.Y. Slip Op. 02762
• Parties: In the Matter of Tandy Renee WILSON, Respondent,v.Norman Craig LaMOUNTAIN, Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1154

921 N.Y.S.2d 362

2011 N.Y. Slip Op. 02762

In the Matter of Tandy Renee WILSON, Respondent,

v.Norman Craig LaMOUNTAIN, Appellant.

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

April 7, 2011.

Nichols Law Firm, P.L.L.C., Malone (Kevin F. Nichols of counsel), for appellant.Emily S. Cartwright, Franklin County Department of Social Services, Malone, for respondent.Before: SPAIN, J.P., STEIN, McCARTHY, GARRY and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order of the Family Court of Franklin County (Main Jr., J.), entered May 18, 2010, which, in a proceeding pursuant to Family Ct. Act article 4, committed respondent to the Franklin County Jail for a term of 90 days.

The parties are the parents of two children (born in 1990 and 1995). In June 2005, Family Court registered a child support order issued by a court in Nevada, which, in July 2004, required respondent to pay $250 per month, per child, to petitioner ( see Family Ct. Act § 580–601).¹ In January 2007, petitioner commenced the instant proceeding alleging respondent's willful violation of the order of support. Subsequently, petitioner filed an amended petition further alleging that respondent failed to pay his percentage of uncovered medical expenses for the children. Respondent was served with the petition and amended petition, but he failed to appear at the scheduled court appearance; in May 2007, a warrant was issued for his arrest.

In August 2009, respondent was arrested and appeared before a Support Magistrate. Following a hearing, the Support Magistrate found that respondent had willfully violated the support order, established arrears and awarded a judgment of $23,526.35, and referred the matter to Family Court for confirmation. Family Court confirmed the Support Magistrate's findings and, after a hearing, imposed a sentence of 90 days in jail.² Respondent now appeals, contending that Family Court erred in committing him to a period of incarceration absent proof of his ability to pay the support obligation.

Pursuant to Family Ct. Act § 437, a respondent is presumed to have sufficient means to support his or her spouse and children. “ ‘Proof of a failure to make required support payments is prima facie evidence of a willful violation’ ” ( Matter of St. Lawrence County Support Collection Unit v. Cook, 57 A.D.3d 1258, 1258–1259, 870 N.Y.S.2d 531 [2008], lvs. denied 12 N.Y.3d 707, 879 N.Y.S.2d 54, 906 N.E.2d 1088 [2009], quoting Matter of St. Lawrence County Dept. of Social Servs. v. Pratt, 44 A.D.3d 1125, 1125, 843 N.Y.S.2d 702, lv. dismissed and denied, 9 N.Y.3d 1020, 851 N.Y.S.2d 124, 881 N.E.2d 220 [2008]; see Family Ct. Act § 454[3][a] ), which then shifts the burden to the respondent to provide some “credible evidence of his [or her] 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 Chamberlain v. Chamberlain, 69 A.D.3d 1249, 1250, 893 N.Y.S.2d 704 [2010]; Matter of Vickery v. Vickery, 63 A.D.3d 1220, 1221, 880 N.Y.S.2d 724 [2009] ). Here, a representative of the Franklin County Child Support Collection Unit provided unrefuted testimony at the hearing before the Support Magistrate that the child support arrears exceeded $28,000, with the last payment having been made in February 2006. Petitioner confirmed that she had not received any child support payments since February 2006, and also testified that she had not received payment for respondent's half of the children's uncovered medical bills. This testimony constituted prima facie evidence of a willful violation of the order. The burden then shifted to respondent to offer evidence of his inability to make those payments.

To that end, respondent testified that he was the recipient of Social Security disability benefits, food stamps, energy aid and Medicaid benefits, and that a 1998 gunshot wound prevented him from working and, thus, paying child support. However, respondent admitted to having worked as a truck driver sometime in 2003 until 2004 and that he lost that job...