Pace v. Douglas

• Decision Date: 06 July 2016
• Citation: 141 A.D.3d 530,35 N.Y.S.3d 241,2016 N.Y. Slip Op. 05377
• Parties: In the Matter of Sandra PACE, respondent, v. Kirk A. DOUGLAS, appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 530

35 N.Y.S.3d 241

2016 N.Y. Slip Op. 05377

In the Matter of Sandra PACE, respondent,

v.Kirk A. DOUGLAS, appellant.

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

July 6, 2016.

William A. Sheeckutz, East Meadow, NY, for appellant.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and FRANCESCA E. CONNOLLY, JJ.

Appeal from an order of commitment of the Family Court, Nassau County (Anna Anzalone, J.), dated March 9, 2015. The order, in effect, confirmed an order of that court (Adam E. Small, S.M.), dated February 3, 2015, made after a hearing, finding that the father willfully violated a child support order, and committed him to the custody of the Nassau County Correctional Facility for a period of 31 days, to be served on weekends, unless he paid a purge amount of $6,000.

ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 31 days, to be served on weekends, is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Lecei v. Lecei, 112 A.D.3d 629, 629, 975 N.Y.S.2d 774

); and it is further,

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

The mother commenced this proceeding alleging that the father was in willful violation of a child support order dated August 26, 2010. After a hearing at which both the mother and father testified, the Support Magistrate issued an order finding that the father had willfully violated the order of support and recommending commitment. The father filed objections to the Support Magistrate's order. On March 9, 2015, the Family Court issued an order of commitment, in effect, confirming the Support Magistrate's finding of willfulness, and committing father to the custody of the Nassau County Correctional Facility for a period of 31 days, to be served on weekends, unless he paid a purge amount of $6,000. Several months later, the court issued an order in which it held that the father's objections were improperly filed, and denied them.

Because the father has completed his period of commitment, his appeal from so much of the order of commitment as committed him to the custody of the Nassau County Correctional Facility has been rendered academic (see Matter of Dezil v. Garlick, 136 A.D.3d 904, 905, 25 N.Y.S.3d 337

). However, the father's appeal from so much of the order of commitment as, in effect, confirmed the finding that he was in willful violation of the support order is not academic because there are enduring consequences which might flow from that finding (see Matter of Bickwid v. Deutsch,

87 N.Y.2d 862, 863, 638 N.Y.S.2d 932, 662 N.E.2d 250 ; Matter of

Dezil v. Garlick, 136 A.D.3d at 905, 25 N.Y.S.3d 307 ).

The father first contends that the Family Court improperly confirmed the Support Magistrate's finding of willfulness before it decided his objections to the Support Magistrate's order. As the Family Court correctly noted, however, a determination by a Support Magistrate that a person is in willful violation of a support order and recommending commitment has “no force and effect until confirmed by a judge of the court” (Family Ct. Act § 439

[a]; see Matter of

Henry v. Greenidge, 127 A.D.3d 1192, 1192–1193, 7 N.Y.S.3d 575 ; cf. Family Ct. Act § 439[e] ). Thus, the support magistrate's determination is not a “final order” to which a party may file written objections (Family Ct. Act § 439[e] ; see Matter of

Henry v. Greenidge, 127 A.D.3d at 1192–1193, 7 N.Y.S.3d 575 ). Accordingly, the Family Court did not err in, in effect, confirming the Support Magistrate's determination in the order of commitment before it decided the father's objections. The father's sole remedy was to appeal from the order of commitment (see Matter of

Henry v. Greenidge, 127 A.D.3d at 1192–1193, 7 N.Y.S.3d 575 ).

Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support (see Family Ct. Act § 454[3]

; Matter of

Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of

Gorsky...