Matter of Fallon v. Fallon

• Decision Date: 14 June 2001
• Citation: 728 N.Y.S.2d 725
• Parties: (A.D. 2 Dept. 2001) In the Matter of Karen Fallon, respondent, v. Kieran Fallon, appellant. 2000-02462 : SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

Page 725

728 N.Y.S.2d 725 (A.D. 2 Dept. 2001)

In the Matter of Karen Fallon, respondent, v. Kieran Fallon, appellant.

2000-02462

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - June 14, 2001

August 13, 2001

Del Atwell, Albany, N.Y., for appellant.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (McElligott, J.), dated February 15, 2000, which, in effect, confirmed a determination of the same court (Lynaugh, H.E.), dated February 14, 2000, finding that he willfully failed to obey an order of the same court, dated April 15, 1998, and thereupon committed him to a term of incarceration of four months unless he purged himself of his contempt by paying the sum of $7,000 toward his child support arrears.

ORDERED that the order is affirmed, without costs or disbursements.

The proof before the Hearing Examiner concerning the father's failure to pay court-ordered child support constituted prima facie evidence of his willful violation of the prior support order (see, Family Ct Act §454[3][a]; York v York, 250 A.D.2d 838; Wilkinson v Wilkinson, 232 A.D.2d 572). The burden then shifted to the father "to offer some competent, credible evidence of his inability to make the required payments" (Matter of Powers v Powers, 86 N.Y.2d 63, 69-70). The Hearing Examiner properly rejected the father's claims of unemployment and impoverishment, since he failed to demonstrate that he had made reasonable efforts to obtain gainful employment to meet his child support obligations (see, Dorner v McCarroll, 271 A.D.2d 530; Bouchard v Bouchard, 263 A.D.2d 775; Walsh v Walsh, 227 A.D.2d 497), and was evasive concerning how he met his own expenses and purchased a mobile home while owing significant child support arrears (see, Mazzilli v Mazzilli, 248 A.D.2d 474). Thus, the Family Court properly found that the father willfully violated the prior support order.

The father's contention that the Hearing Examiner was predisposed to find in the mother's favor is unpreserved for appellate review (see, Stone v Stone, 236 A.D.2d 615; Spiegel v Smith, 212 A.D.2d 717). In any event, the contention is without merit (see, Orzechowski v Orzechowski, 206 A.D.2d 535; Zirkind v Zirkind, 218 A.D.2d 745).

O'BRIEN, J.P., KRAUSMAN, SMITH and ADAMS, JJ., concur.