Melanie C. v. Carlo B.

• Decision Date: 30 March 2021
• Docket Number: Case No. 2019-05152,13454,Dkt No. F-01701-18/18B
• Citation: 145 N.Y.S.3d 37,192 A.D.3d 624
• Parties: In the Matter of MELANIE C., Petitioner-Respondent, v. CARLO B., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 624
145 N.Y.S.3d 37

In the Matter of MELANIE C., Petitioner-Respondent,
v.
CARLO B., Respondent-Appellant.

13454
Dkt No. F-01701-18/18B
Case No. 2019-05152

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

ENTERED: March 30, 2021

145 N.Y.S.3d 38

Law Office of Bruce A. Young, Brooklyn (Bruce A. Young of counsel), for appellant.

Law Office of Helene Carvallo, New York (Helene Carvallo of counsel), for respondent.

Gische, J.P., Singh, Scarpulla, Mendez, JJ.

Order, Family Court, New York County (Valerie A. Pels, J.), entered on or about November 18, 2019, which confirmed the finding of willfulness as to the father's nonpayment of support for the parties' child, and issued an order of commitment for up to six months with suspension of order of commitment upon payment of $10,000, and brought up for review amended findings of fact, same court (Tionnei Clarke, Support Magistrate), entered on or about November 6, 2019, which, after a hearing, found that the father willfully violated his child support obligations, recommended a warrant for his arrest, and recommended incarceration for a period not to exceed six months or suspension of commitment

145 N.Y.S.3d 39

upon payment of $10,000, unanimously affirmed, without costs.

Failure to pay child support, as ordered, constitutes prima facie evidence of a willful violation, at which point the burden shifts to the respondent to offer competent credible evidence of his or her inability to make payments as ordered ( Family Ct Act § 454[3][a] ; Matter of Powers v. Powers, 86 N.Y.2d 63, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ). The father did not do so, and the court's finding of willfulness, and the penalties it imposed, were a provident exercise of its discretion ( Family Ct Act § 454[3][a] ; Matter of Ana B. v. Hector N., 100 A.D.3d 476, 953 N.Y.S.2d 587 [1st Dept. 2012] ). The father's untenable position on appeal is, in essence, that he is not responsible to pay child support in accordance with his divorce judgment or so-ordered...