Wayne Cnty. Dep't of Soc. Servs. ex rel. Jackson v. Loren, 1548
| Decision Date | 16 March 2018 |
| Docket Number | 1548,CAF 16–02234 |
| Citation | 159 A.D.3d 1504,70 N.Y.S.3d 151 (Mem) |
| Parties | In the Matter of WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF Marguerite JACKSON, Petitioner–Respondent, v. Lisa LOREN, Respondent–Appellant. |
| Court | New York Supreme Court — Appellate Division |
159 A.D.3d 1504
70 N.Y.S.3d 151 (Mem)
In the Matter of WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF Marguerite JACKSON, Petitioner–Respondent,
v.
Lisa LOREN, Respondent–Appellant.
1548
CAF 16–02234
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: March 16, 2018
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–APPELLANT.
ELIZA HEATON, LYONS, FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Respondent mother appeals from an order denying her objections to the order of the Support Magistrate, which, inter alia, determined that the mother willfully violated a prior order of child support and denied her motion to cap her unpaid child support arrears at $500 pursuant to Family Court Act § 413(1)(g).
We reject the mother's contention that petitioner failed to establish that she willfully violated the order of support. There is a statutory presumption that a respondent has sufficient means to support his or her minor children (see Family Ct Act § 437 ; Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ), and
petitioner presented evidence that the mother failed to pay child support as ordered, which constitutes " ‘prima facie evidence of a willful violation’ " ( Matter of Roshia v. Thiel, 110 A.D.3d 1490, 1492, 972 N.Y.S.2d 804 [4th Dept. 2013], lv dismissed in part and denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 [2013], quoting § 454[3][a] ). The burden then shifted to the mother to present "some competent, credible evidence of [her] inability to make the required payments" (
Powers, 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ). The mother failed to meet that burden because she "failed to present...
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...Unit v. Hemminger , 186 A.D.3d 1093, 1093, 127 N.Y.S.3d 381 [4th Dept. 2020] ; Matter of Wayne County Dept. of Social Servs. v. Loren , 159 A.D.3d 1504, 1504-1505, 70 N.Y.S.3d 151 [4th Dept. 2018] ). Thus, evidence that a respondent has failed to pay child support as ordered constitutes "pr......
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...lv denied 19 N.Y.3d 803, 2012 WL 1538619 [2012] [internal quotation marks omitted]; see Matter of Wayne County Dept. of Social Servs. v. Loren , 159 A.D.3d 1504, 1505, 70 N.Y.S.3d 151 [4th Dept. 2018] ). Here, contrary to the father's contention, he failed to submit competent medical eviden......
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