Stone v. Stone

Decision Date24 February 1997
Citation236 A.D.2d 615,654 N.Y.S.2d 677
PartiesIn the Matter of Vivian STONE, Respondent, v. Richard STONE, Appellant.
CourtNew York Supreme Court — Appellate Division

Cherico, Stix and Associates, White Plains, for appellant.

Christopher & Draine, Upper Nyack (Linda Christopher, of counsel), for respondent.

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Rockland County (Shapiro, J.), entered March 6, 1995, which, upon finding him in contempt as a result of his willful failure to obey a prior order of the same court directing the payment of child support, committed him to the Rockland County Jail for a period of six months subject to early release upon the payment of child support arrears of $14,677.

ORDERED that the order is affirmed, with costs.

Although the six-month period of commitment has passed, the appeal is not academic (cf., Matter of Cutrone v. Cutrone, 225 A.D.2d 767, 640 N.Y.S.2d 568).

The Family Court correctly confirmed the hearing examiner's determination, which is entitled to great deference on appeal (see, Matter of Commissioner of Social Services v. Jones-Gamble, 227 A.D.2d 618, 643 N.Y.S.2d 182; Jimenez v. Jimenez, 222 A.D.2d 589, 636 N.Y.S.2d 642; Drago v. Drago, 138 A.D.2d 704, 526 N.Y.S.2d 518), that the father willfully violated the support order. The father did not sustain his burden to rebut the prima facie evidence of willfulness, in his admitted failure to pay a legally-ordered support award, by showing sufficient proof of his inability to pay (see, Family Ct. Act § 454[3][a]; see, e.g., Bickwid v. Deutsch, 229 A.D.2d 533, 645 N.Y.S.2d 539; see also, Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154).

The father's remaining contentions, regarding certain determinations of the hearing examiner, are not properly before this court, as the father failed to take an appeal from the order of the Family Court dated January 12, 1995, denying his objections to the order of the hearing examiner. In any event, the father's failure to raise these issues before the Family Court in his objections would have rendered them unpreserved for appellate review even if an appeal from the January 12, 1995, order had been taken (see, Bickwid v. Deutsch, supra ).

O'BRIEN J.P., and THOMPSON, JOY and GOLDSTEIN, JJ., concur.

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17 cases
  • Grucci v. Villanti
    • United States
    • New York Supreme Court Appellate Division
    • July 10, 2013
    ...contentions are either without merit or improperly raised for the first time on appeal ( seeCPLR 5501; Matter of Stone v. Stone, 236 A.D.2d 615, 654 N.Y.S.2d...
  • Jernigan-Leysath v. Leysath
    • United States
    • New York Family Court
    • May 16, 2022
    ...Magistrate should not be disturbed unless no fair interpretation of the evidence can support the findings (see Matter of Stone v Stone, 236 A.D.2d 615, 615 [2d Dept 1997]; Matter of Reed v Reed, 240 A.D.2d 951, 952 [3d Dept 1997]). In applying these legal principles, the scope of the Family......
  • Jernigan-Leysath v. Leysath
    • United States
    • New York Family Court
    • May 16, 2022
    ...... fair interpretation of the evidence can support the findings. (see Matter of Stone v Stone, 236 A.D.2d 615, 615. [2d Dept 1997]; Matter of Reed v Reed, 240 A.D.2d. 951, 952 [3d Dept 1997]). In applying these legal ......
  • Y.D. v. L.O.
    • United States
    • New York County Court
    • October 13, 2022
    ...the findings ( Tanya O. v. Alexes P. , 63 Misc. 3d 1206(A), 2019 WL 1322599 (N.Y. Fam. Ct. 2019), citing Matter of Stone v. Stone , 236 A.D.2d 615, 615, 654 N.Y.S.2d 677 [2d Dept. 1997] ; Matter of Reed v. Reed , 240 A.D.2d 951, 952, 659 N.Y.S.2d 334 [3d Dept. 1997] ). In applying these leg......
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