Marra v. Hernandez

• Decision Date: 09 January 2013
• Parties: In the Matter of Angeline MARRA, respondent, v. Kenneth HERNANDEZ, appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 699
956 N.Y.S.2d 908
2013 N.Y. Slip Op. 00097

In the Matter of Angeline MARRA, respondent,
v.
Kenneth HERNANDEZ, appellant.

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

Jan. 9, 2013.

Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.

[956 N.Y.S.2d 909]

[102 A.D.3d 699]In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Queens County (Hunt, J.), dated September 1, 2011, which, in effect, confirmed an order of the same court (Fondacaro, S.M.), dated August 17, 2011, which found, after a hearing, that he willfully violated the child support obligations set forth in the parties' judgment of divorce dated July 30, 2002, and committed him to the custody of the New York City Department of Corrections for a term of imprisonment of six months.

ORDERED that the appeal from so much of the order dated September 1, 2011, as committed the father to the custody of the New York City Department of Corrections for a period of six months is dismissed, as academic, without costs or disbursements, as the period of incarceration has expired ( see Matter of Rodriguez v. Suarez, 93 A.D.3d 730, 939 N.Y.S.2d 870); and it is further,

ORDERED that the order dated September 1, 2011, is affirmed insofar as reviewed, without costs or disbursements.

[102 A.D.3d 700]The Family Court properly confirmed the Support Magistrate's finding that the father willfully violated the child support provisions of the parties' judgment of divorce. Proof of the failure to pay child support constitutes “ ‘prima facie evidence of a willful violation,’ ” and shifts the burden to the obligor to come forward with competent, credible evidence of his or her inability to pay (Matter of Brennan v. Burger, 63 A.D.3d 922, 923, 882 N.Y.S.2d 181, quoting Family Ct. Act § 454[3][a]; see Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154). The mother's prima facie showing that the father owed approximately $100,000 in child support arrears shifted the burden to the father to come forward with competent, credible evidence that his failure to pay child support in accordance with the terms stipulated to, and incorporated in, the parties' 2002 judgment of divorce was not willful ( see Matter of Powers v. Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154). The father failed to satisfy that burden ( see e.g. Matter of Vickery v. Vickery, 63 A.D.3d 1220, 1221, 880 N.Y.S.2d 724).

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