Provost v. Provost

• Decision Date: 23 February 2017
• Citation: 46 N.Y.S.3d 923 (Mem),2017 N.Y. Slip Op. 01422,147 A.D.3d 1256
• Parties: In the Matter of Mandy PROVOST, Petitioner, v. Jeramy L. PROVOST, Appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1256

46 N.Y.S.3d 923 (Mem)

2017 N.Y. Slip Op. 01422

In the Matter of Mandy PROVOST, Petitioner,

v.Jeramy L. PROVOST, Appellant.

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

Feb. 23, 2017.

Michelle I. Rosien, Philmont, for appellant.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and MULVEY, JJ.

LYNCH, J.

Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entered February 23, 2016, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to hold respondent in willful violation of a prior order of support.

In October 2015, petitioner commenced this proceeding alleging that respondent was in violation of a 2007 order directing him to pay child support in the statutory minimum amount of $25 per month (see Family Ct. Act § 413[1] [d] ). After a hearing, a Support Magistrate found that respondent willfully violated the order, established arrears in the amount of $500, the statutory cap (see Family Ct. Act § 413[1][g] ), and recommended incarceration for a period not to exceed six months. Family Court confirmed the Support Magistrate's finding of a willful violation and scheduled the matter for a sanctions hearing on February 23, 2016. At that hearing, counsel for the parties informed the court that respondent paid the full arrearage, plus two months. Nonetheless, without taking testimony, Family Court sentenced respondent to 90 days in jail (see Family Ct. Act § 454[3][a] ), consecutive to the eight-month sentence he was then serving on an unrelated matter. Respondent appeals.¹

Our review confirms that there was ample evidence presented during the hearing before the Support Magistrate that respondent failed to pay the court-ordered child support, constituting prima facie evidence of a willful violation (see Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; Matter of Fifield v. Whiting, 139 A.D.3d 1128, 1129, 31 N.Y.S.3d 299 [2016] ). As such, the burden of proof shifted to respondent to establish his inability to make the required payments (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 Fifield v. Whiting, 139 A.D.3d at 1129, 31 N.Y.S.3d 299 ). While he testified to being unemployed since 2013 and to having a series of personal setbacks, including his current incarceration, respondent also acknowledged receiving a $10,000 income tax refund in 2014. As such, the record supports the determination that respondent's failure to pay was willful.

Upon a willful violation, Family Court is authorized to impose a sentence of incarceration of up to six months (see Family Ct. Act § 454[3][a] ). Such a sentence is in the nature of a civil contempt, which "may only continue until such time as the offender, if it is within his or her power, complies with the support order" (Matter of Martinez v. Martinez, 44 A.D.3d 945, 947, 845 N.Y.S.2d 75 [2007] ; see Family Ct. Act § 156 ; Judiciary Law § 774[1] ; Kaminski v. Kaminski, 212 A.D.2d 1045, 1045–1046, 623 N.Y.S.2d 671 [1995] ; Matter of ...