Boyle v. Boyle

101 A.D.3d 1412, 955 N.Y.2d 777

Opinion

Mercure, J.P.

The father’s admitted failure to pay support since 2007, leading to a significant arrearage, established a “direct case of willful violation, shifting to [the father] the burden . . . [of] offer-ting] some competent, credible evidence of his inability to make the required payments” (Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]; accord Matter of Scott v Scott, 50 AD2d 1193, 1194 [2008]). Although the father testified that he has been unable to work due to injuries sustained in a 2007 car accident, he did not present medical proof of any restrictions on his employment, and he conceded that his claim for disability benefits had been denied three times (see Matter of Lewis v Cross, 72 AD3d 1228, 1230 [2010]; Matter of Chamberlain v Chamberlain, 69 AD3d 1249, 1250-1251 [2010]; Matter of Vickery v Vickery, 63 AD3d 1220, 1221 [2009]). Nor did the father demonstrate that he had made a good faith effort to find employment; rather, he testified that he had applied for “three or four” jobs in the past “four or five years” (see Matter of Scott v Scott, 50 AD 3d at 1194; Matter of Mitchell v Rockhill, 45 AD3d 1140, 1141 [2007]). According deference to the Support Magistrate’s credibility determinations, clear and convincing evidence supports the finding of willful violation.

Spain, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, without costs.