Powers v. Powers

Decision Date14 June 1995
Parties, 653 N.E.2d 1154 In the Matter of Bernadette L. POWERS, Appellant, v. Allen B. POWERS, Respondent.
CourtNew York Court of Appeals Court of Appeals

KAYE, Chief Judge.

"As every practitioner knows, the problems of enforcing a support order could fill a book" (Besharov, Introductory Practice Commentary, McKinney's Cons.Laws of N.Y., Book 29A, Family Ct. Act art. 4, at 5). The present chapter in the sad volume already filled by the parties before us--parents of five minor children--centers on whether respondent father's failure to pay support was established to be willful, justifying Family Court's order of commitment for contempt. We conclude that the record supports Family Court's determination and therefore reverse the Appellate Division order that overturned it.

The facts of this case begin with the parties' divorce on May 16, 1990, by a final decree incorporating (but not merging) a May 7 separation agreement. The agreement provided that respondent--a self-employed certified public accountant--would pay petitioner child support of $225 per week and maintenance of $375 per week for 10 years, with maintenance decreasing after that time. As the ensuing recitation shows, the three years that followed the parties' divorce were marked by petitioner's persistent efforts to enforce the financial provisions of the separation agreement.

Barely three months after the divorce, on August 31, 1990, petitioner first sought enforcement of respondent's obligation and he countered with a petition for modification. Before the year was out, on December 11, 1990, petitioner filed her first violation petition, which resulted in a decision and order dated March 13, 1991 granting petitioner judgment in the amount of arrears ($13,300), directing no change in the support obligation, and "reluctantly" concluding that respondent's violation was not willful.

After a second violation petition filed the following month, the parties on November 8, 1991 entered into a stipulation in open court reducing maintenance to $250 per week (with the $125 difference accruing as arrears until Dec. 1, 1993), while continuing child support at $225 per week. Arrears as of November 8, 1991 totaled $13,080.

Weeks later, on January 22, 1992, petitioner filed yet a third violation petition and respondent cross-petitioned for downward modification of the support obligation. Respondent asserted his inability to pay because of a decline in income resulting in his "dire financial condition." He also counterclaimed that petitioner was in better financial circumstances than he because she was gainfully employed and "living with a male person who has a substantial income"--and indeed that since 1991, they were holding themselves out as husband and wife, thereby vitiating the maintenance obligation. Respondent complained that deductions from his business checking account by reason of petitioner's executions were impairing the cash flow of his business.

Before the Hearing Examiner some months later, respondent produced a 33-page schedule of weekly income and expenses for the period from September 29, 1991 to May 9, 1992, which he had prepared especially for the hearing. The schedule showed income for the seven-month period of $70,584 and expenses of $83,589 ($53,624 business and $29,965 personal expenses). Respondent submitted no substantiating documentation and no tax return for the year, claiming he had filed no tax return.

Respondent testified that he had additionally received some loans and gifts not reflected on the schedule. He further testified that he maintained no separate business or personal bank accounts and no checking account in his own name (in his words, "it wouldn't stay there very long") but deposited all his income in an account in the name of his current wife, who worked periodically for him and had no independent income.

Between the effective date of the November 8, 1991 stipulation and the close of evidence, respondent made less than half of the agreed-upon payments. Arrears grew by $8,425, reaching a total of $21,505.

Based on this evidence, the Hearing Examiner concluded that respondent's violation was willful, characterizing his attempts to explain any changes in his situation since the November 8 in-court stipulation as "pathetic." The Hearing Examiner found that respondent "presented no credible reason to overcome the presumption that nonpayment creates;" noted that he was a certified public accountant $21,505 in arrears who had stipulated to the disputed obligations; and directed respondent to appear before Family Court on July 17, 1992, for confirmation and sentencing.

On respondent's cross petition to modify the support order, petitioner testified that she was an apprentice barber earning $300 to $400 per month and that her financial circumstances had not changed, but that she had been receiving approximately $200 in monthly rent. The Hearing Examiner found that respondent had "failed to present any proof that his financial condition had worsened since the November 8, 1991 stipulation." Although respondent claimed that he was unaware of petitioner's receipt of rent, the Hearing Examiner noted that such fact had existed when the stipulation was made and he refused to modify the order.

On August 7, 1992, Family Court confirmed the Hearing Examiner's finding of willful violation, held respondent in contempt, and sentenced him to 60 days in the Saratoga County Jail. Sentence was suspended, however, on condition that respondent make payments in accordance with the stipulation.

Petitioner subsequently filed a fourth violation petition, along with an affidavit of the Supervisor of the Support Collection Unit dated December 16, 1992, stating that respondent was in arrears for $3,325 since the August 7 determination.

In a proceeding to establish respondent's violation of the condition of his suspended sentence, Family Court confirmed the finding of willful violation, concluding from its own review of the record that there was "insufficient evidence to excuse or justify the Respondent's failure to honor his support obligations and that the Hearing Examiner's determination, dated June 5, 1992, that the Respondent was in wilful violation of his support obligations should not be disturbed." On the issues raised by the cross petition, Family Court held that respondent had failed to submit competent evidence either justifying a downward reduction in his support obligation or establishing that petitioner was holding herself out as another person's spouse.

On May 7, 1993--the precise three-year anniversary of the parties' separation agreement--Family Court ordered respondent's suspended sentence revoked and committed him to the jail for a term of 60 days, or until he purged himself by payment of arrearages totaling $23,880.

The Appellate Division, one Justice dissenting, modified on the law by reversing the finding of contempt and order of commitment. The court held that, by reference to a "presumption" arising from nonpayment, the Hearing Examiner applied the wrong standard of proof and that respondent had sufficiently shown his inability to pay. According to the Appellate Division, "Family Court never found that respondent was financially capable and willfully failed to make the required payment." (207 A.D.2d 637, 638, 616 N.Y.S.2d 102.) We now reverse and reinstate Family Court's order.


Despite the extended factual scenario, the legal issue before us is a straightforward one: did petitioner sustain her burden of proof? Petitioner agrees that the burden of proof is hers to sustain, and that a finding of willful violation on which a person may be incarcerated requires clear and convincing evidence (an issue this Court has yet to determine).

The answer to the question posed begins with the relevant sections of the Family Court Act. As...

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  • El-Dehdan v. El-Dehdan
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    • New York Supreme Court Appellate Division
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    ...finds that the party “has willfully failed to obey any lawful order of support” (Family Ct. Act § 454 [3]; see Matter of Powers v. Powers, 86 N.Y.2d 63, 629 N.Y.S.2d 984, 653 N.E.2d 1154). Where Family Ct. Act § 454, or any other section of the Family Court Act does not apply, the Family Co......
  • Susko v. Susko
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    • New York Supreme Court Appellate Division
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    ...context is based solely upon "proof of both the ability to pay support and the failure to do so" ( Matter of Powers v. Powers , 86 N.Y.2d 63, 68, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; accord Matter of Nickerson v. Bellinger, 258 A.D.2d 688, 688, 685 N.Y.S.2d 320 [1999] ). It has been r......
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    ...state had met its burden through the inference of continuing possession. 632 F.2d at 974-75; see also Powers v. Powers, 86 N.Y.2d 63, 69-70, 653 N.E.2d 1154, 629 N.Y.S.2d 984 (N.Y. 1995) ("The burden of going forward required respondent to offer some competent, credible evidence of his inab......
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    • United States State Supreme Court (New York)
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    ...1016, 885 N.Y.S.2d 323 (2d Dept.2009). Upon a finding of contempt, the Court may impose a period of incarceration. See Powers v. Powers, 86 N.Y.2d 63, 629 N.Y.S.2d 984, 653 N.E.2d 1154 (1995). [978 N.Y.S.2d 817] During trial Wife admitted that she did not give the child to Husband for visit......
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1 books & journal articles
  • A Practice Commentary To Judiciary Law Article 19
    • United States
    • Cardozo Public Law, Policy and Ethics Journal No. I-1, May 2003
    • May 1, 2003
    ...Co., 785 F.2d 970, 984 (11th Cir. 1986); Piambino v. Bestline Prod., Inc., 645 F. Supp. 1210, 1213 (S.D. Fla. 1986); Powers v. Powers, 653 N.E.2d 1154, [47] See GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375 (1980). See also Walker v. City of Birmingham, 388 U.S. 307 (1967); United Sta......

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