Nickel v. Nickel

• Decision Date: 22 May 2019
• Docket Number: 2018–03847,Docket No. F–16828–15,2018–03850,2018–03853,2018–03849
• Citation: 98 N.Y.S.3d 890 (Mem),172 A.D.3d 1210
• Parties: In the Matter of Dina K. NICKEL, Respondent, v. Keith M. NICKEL, Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1210

98 N.Y.S.3d 890 (Mem)

In the Matter of Dina K. NICKEL, Respondent,

v.Keith M. NICKEL, Appellant.

2018–03847

2018–03849

2018–03850

2018–03853

Docket No. F–16828–15

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

Submitted—February 15, 2019

May 22, 2019

Darla A. Filiberto, Hauppauge, NY, for appellant.

Nassau/Suffolk Law Services Committee, Inc., Islandia, N.Y. (Darlene Rosch of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) findings of fact of the Family Court, Suffolk County (Meridith Lafler, S.M.), dated March 1, 2018, (2) an order of disposition of the same court, also dated March 1, 2018, (3) an order of the same court, also dated March 1, 2018, and (4) an order of commitment of the same court (Jeffrey Arlen Spinner, J.), also dated March 1, 2018. The order of disposition, insofar as appealed from, after a hearing, upon the findings of fact, determined that the father willfully violated a prior order of child support. The order directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $ 5,915 for child support arrears. The order of commitment, in effect, confirmed the finding that the father willfully violated a prior order of child support and directed that he be incarcerated for a period of four months with a purge amount of $ 2,000.

ORDERED that the appeal from the findings of fact is dismissed, without costs or disbursements, as no appeal lies therefrom (see DiFiore v. DiFiore, 87 A.D.3d 971, 933 N.Y.S.2d 39 ); and it is further,

ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the appeal from the order directing the entry of a money judgment is dismissed as abandoned, without costs or disbursements; and it is further,

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

The appeal from the order directing the entry of a money judgment must be dismissed as abandoned, as the father's brief does not seek reversal or modification of any portion of that order (see Matter of Pepe v. Pepe, 124 A.D.3d 898, 998 N.Y.S.2d 897 ).

The mother commenced this proceeding against the father, alleging that he was in willful violation of a child support order.

Following a hearing, the Support Magistrate found, inter alia, that the father willfully violated the child support order and recommended that the father be incarcerated. The Family Court, in effect, confirmed the Support Magistrate's finding that the father's violation was willful, and directed that he be incarcerated for a period of four months with a purge amount of $ 2,000. The father appeals.

The father's failure to pay child support constituted prima facie evidence of a willful violation (see Family Ct Act § 454[3][a] ; Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Bea v. Winslow, 162 A.D.3d 763, 764, 79 N.Y.S.3d 79 ; Matter of Fusco v. Fusco, 134 A.D.3d 1112, 1113, 22 N.Y.S.3d 559 ). This prima facie showing 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 of the order was not willful (see Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Kimbrough v. Murphy, 156 A.D.3d 640, 641, 66 N.Y.S.3d 288 ; Matter of Rafferty v. Ettinger, 150 A.D.3d 1016, 1016, 55 N.Y.S.3d 145 ). The father...