Powers v. Powers

• Decision Date: 25 August 1994
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Bernadette L. POWERS, Respondent, v. Allen B. POWERS, Appellant.

Page 102

616 N.Y.S.2d 102

207 A.D.2d 637

In the Matter of Bernadette L. POWERS, Respondent, v. Allen B. POWERS, Appellant.

Supreme Court, Appellate Division,

Third Department.

Aug. 25, 1994.

William V. Canale, Glens Falls, for appellant.

Jennifer A. Jensen, Glens Falls, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, WEISS and YESAWICH, JJ.

WEISS, Justice.

Appeal from an order of the Family Court of Saratoga County (Ferradino, J.), entered April 30, 1993, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, to hold respondent in contempt for violating an order of support.

The May 16, 1990 judgment of divorce incorporated but did not merge a May 7, 1990 separation agreement which provided that respondent pay $225 weekly for support of five children plus $375 weekly as maintenance to petitioner. On March 13, 1991 Family Court granted petitioner judgment for $13,300 in arrears without a finding of respondent's willful violation of the divorce decree. On November 8, 1991, at the hearing on a second violation petition, the parties stipulated the additional arrearage to be $13,080 and temporarily reduced the maintenance payment by $125 weekly until October 1993. On June 3, 1992, a hearing was held on the third petition alleging violation at which respondent testified to the economic recession which had impacted adversely upon his certified public accounting practice between September 29, 1991 and May 9, 1992, leaving him with but $16,800 to meet $29,965 in living expenses and payments he actually made to petitioner. The Hearing Examiner found that "[h]is attempts to explain any changes in his situation, since the November 8 stipulation, can best be described as pathetic. I find that he has presented no credible reason to overcome the presumption that non payment [sic ] creates." Family Court rejected respondent's objections and upheld the decision of the Hearing Examiner finding him in willful violation, and imposed a sentence of 60 days in jail for civil contempt of court.

On this appeal respondent contends first that the uncontradicted proof of his dire financial circumstances sufficiently rebutted the prima facie evidence of willfulness established by petitioner's showing that he failed to make the ordered payments (see, Family Ct.Act § 454[3][a]. Second, he contends that further evidence was required to satisfy the standard of clear and convincing proof both of his ability to pay and that his failure was willful. He argues that an incorrect standard of proof was applied to his situation.

We find that the Hearing Examiner did apply an incorrect burden of proof upon respondent when he misconstrued the term "prima facie evidence" appearing in Family Court Act § 454(3)(a) to mean a "presumption". The terms are not synonymous (57 NY Jur 2d, Evidence and Witnesses, § 4, at 173). Prima facie evidence means evidence which is sufficient to establish the facts unless rebutted (see, Black's Law Dictionary 1071 [5th ed. 1979]; 113 NY Jur 2d, Words and Phrases, at 334). Upon petitioner's proof of nonpayment, the burden of going forward or producing evidence shifted to respondent to rebut or contradict that proof. However, a finding of willful violation upon which a person may be incarcerated must be established by clear and convincing evidence (see, Matter of Carella v. Collins, 144 A.D.2d 78, 83-84, 536 N.Y.S.2d 1020; Bulow v. Bulow, 121 A.D.2d 423, 424, 503 N.Y.S.2d 121; Richardson, Evidence § 96 [10th ed.], at 72).

Here, respondent went forward by demonstrating his limited income and his efforts to meet his obligations. He made a prima facie showing of a financial inability to comply with the order. While respondent's testimony was attacked on cross-examination and argued to be weak, petitioner failed to counter with affirmative proof of respondent's financial ability to meet his support obligation (see, Richardson, Evidence §§ 95, 96 [10th ed.], at 72; see also, Matter of McCarthy v. Spearman, 96 A.D.2d 750, 465 N.Y.S.2d 624). Family Court never found that respondent was financially capable and willfully failed to make the required payment (see, Matter of Department of Soc. Servs. of Fulton Co. v. Hillock, 96 A.D.2d 625, 464 N.Y.S.2d 877). Accordingly, we find that the proof in this...