Kaplan v. Kaplan

• Decision Date: 23 January 2013
• Citation: 957 N.Y.S.2d 903,102 A.D.3d 873,2013 N.Y. Slip Op. 00337
• Parties: In the Matter of Melanie Ann KAPLAN, respondent, v. Edward Scott KAPLAN, appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 873

957 N.Y.S.2d 903

2013 N.Y. Slip Op. 00337

In the Matter of Melanie Ann KAPLAN, respondent,

v.Edward Scott KAPLAN, appellant.

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

Jan. 23, 2013.

Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of counsel), for appellant.

John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), for respondent.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, stated portions of an order of commitment of the Family Court, Nassau County (Greenberg, J.), dated September 7, 2011, which was issued upon the confirmation of an order of disposition and findings of fact of the same court (Miller, S.M.), both dated July 12, 2011, made after a hearing, finding that he willfully violated a child support order.

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

Proof of failure to pay child support as ordered constitutes prima facie evidence of a willful violation of an order of support *904( see Family Ct. Act § 454[3][a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154). Once a prima facie showing has been made, the burden shifts to the party that owes the support to offer some competent, credible evidence of his or her inability to make the required payments ( see Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154). Here, upon the petitioner's prima facie showing of the father's failure to pay child support as ordered, the father failed to meet his burden of offering competent, credible evidence of his inability to make the required payments ( see Matter of Logue v. Abell, 97 A.D.3d 582, 583, 947 N.Y.S.2d 329;Matter of Phillips v. Giddings, 96 A.D.3d 950, 951, 946 N.Y.S.2d 496;Matter of Cooper v. Robertson, 69 A.D.3d 714, 714, 892 N.Y.S.2d 522;Matter of Accettulli v. Accettulli, 38 A.D.3d 766, 834 N.Y.S.2d 533;Matter of Vasconcellos v. Vasconcellos, 37 A.D.3d 613, 829 N.Y.S.2d 705;Matter of Teller v. Tubbs, 34 A.D.3d 593, 824 N.Y.S.2d 387). Accordingly, the Family Court properly determined that the father willfully violated an order of child support.

RIVERA, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.