April G. v. Duane M.

Appellate Division of the Supreme Court of New York

April G. v. Duane M.

105 A.D.3d 491, 964 N.Y.S.2d 5

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 2013

StatusPublished

This text of 105 A.D.3d 491 (April G. v. Duane M.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

April G. v. Duane M., 105 A.D.3d 491, 964 N.Y.S.2d 5 (N.Y. Ct. App. 2013).

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Opinion

Order, Family Court, Bronx County (Gayle E Roberts, J.), entered on or about May 16, 2012, which affirmed the Support Magistrate’s finding of willfulness, and sentenced respondent-appellant father to incarceration for a period not to exceed four months with a purge amount set at $5,000, unanimously affirmed, without costs.

Although the father has paid the purge amount and completed his sentence, this appeal “is not academic, in light of the enduring consequences which might flow from the finding that he violated the order of support” (Matter of Saintime v Saint Surin, 40 AD3d 1103, 1104 [2d Dept 2007]).

The father, however, failed to rebut the prima facie evidence of his willful violation of the order of support (see Family Ct Act § 454 [3] [a]). Indeed, the father failed to present credible evidence that his medical condition renders him unable to provide support for the subject child, or that he is financially unable to pay (compare Matter of Ferrara v Ferrara, 52 AD3d 599, 600 [2d Dept 2008], lv denied 11 NY3d 706 [2008], with Matter of John T. v Olethea P., 64 AD3d 484, 485 [1st Dept 2009]).

To the extent the father argues that the court failed to settle the record on appeal, he has failed to show that evidence exists to remedy the deficiencies in his proof.

Concur—Gonzalez, EJ., Friedman, Abdus-Salaam, Román and Clark, JJ.

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Order, Family Court, Bronx County (Gayle E Roberts, J.), entered on or about May 16, 2012, which affirmed the Support Magistrate’s finding of willfulness, and sentenced respondent-appellant father to incarceration for a period not to exceed four months with a purge amount set at $5,000, unanimously affirmed, without costs.

Although the father has paid the purge amount and completed his sentence, this appeal “is not academic, in light of the enduring consequences which might flow from the finding that he violated the order of support” (Matter of Saintime v Saint Surin, 40 AD3d 1103, 1104 [2d Dept 2007]).

The father, however, failed to rebut the prima facie evidence of his willful violation of the order of support (see Family Ct Act § 454 [3] [a]). Indeed, the father failed to present credible evidence that his medical condition renders him unable to provide support for the subject child, or that he is financially unable to pay (compare Matter of Ferrara v Ferrara, 52 AD3d 599, 600 [2d Dept 2008], lv denied 11 NY3d 706 [2008], with Matter of John T. v Olethea P., 64 AD3d 484, 485 [1st Dept 2009]).

To the extent the father argues that the court failed to settle the record on appeal, he has failed to show that evidence exists to remedy the deficiencies in his proof.

Concur—Gonzalez, EJ., Friedman, Abdus-Salaam, Román and Clark, JJ.

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Bluebook (online)

105 A.D.3d 491, 964 N.Y.S.2d 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/april-g-v-duane-m-nyappdiv-2013.

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