Matter of Vickery v. Vickery

• Decision Date: 04 June 2009
• Docket Number: 505154.
• Citation: 63 A.D.3d 1220,2009 NY Slip Op 04321,880 N.Y.S.2d 724
• Parties: In the Matter of KIM VICKERY, Respondent, v. BRETT VICKERY, Appellant.
• Court: New York Supreme Court — Appellate Division

63 A.D.3d 1220

880 N.Y.S.2d 724

2009 NY Slip Op 04321

In the Matter of KIM VICKERY, Respondent, v. BRETT VICKERY, Appellant.

505154.

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

Decided June 4, 2009.

Appeals (1) from an order of the Family Court of Ulster County (Mizel, J.), entered May 20, 2008, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior order of support, and (2) from an order of said court, entered May 20, 2008, which committed respondent to the Ulster County Jail for a period of six months.

Cardona, P.J.

The parties herein are the parents of two sons (born in 1995 and 1999). In January 2008, petitioner commenced this proceeding alleging that respondent had violated an order of support requiring that he pay $234 biweekly in child support. At a hearing before a Support Magistrate, respondent admitted to being in arrears but claimed that, after unavoidably losing his job with the United States Postal Service, he was unable to secure employment due primarily to his disabling back condition. The Support Magistrate found respondent in willful violation of the support order. Thereafter, following a hearing, Family Court confirmed the Support Magistrate's finding of willfulness, found respondent to be in arrears, and imposed a sentence of six months of incarceration—the terms of which would be suspended upon, among other things, payment in full of the child support arrears within a specified period.^* Respondent appeals and we affirm.

Initially, to the extent respondent contends that the Support Magistrate improperly shifted the ultimate burden of proof, we note that any alleged error was "rendered thoroughly inconsequential by Family Court's own independent review of the record" (Matter of Powers v Powers, 86 NY2d 63, 69 [1995]). With regard to the burden of proof, respondent's acknowledgment that he failed to make the required child support payments since November 2007 constituted prima facie evidence of his willful violation of the support order (see id. at 69; Matter of Zepperi v Madera, 56 AD3d 988, 989 [2008]). The burden then shifted to respondent to rebut the evidence of willfulness by "offer[ing] some competent, credible evidence of his inability to make the required payments" (Matter of Powers v Powers, 86 NY2d at 69-70; see Matter of Holbert v Rifanburg, 39 AD3d 902, 903 [2007]). This respondent failed to do.

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