John v. John

Appellate Division of the Supreme Court of New York

John v. John

292 A.D.2d 387, 738 N.Y.S.2d 612, 2002 N.Y. App. Div. LEXIS 2165

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

DecidedMarch 4, 2002

StatusPublished

This text of 292 A.D.2d 387 (John v. John) 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

John v. John, 292 A.D.2d 387, 738 N.Y.S.2d 612, 2002 N.Y. App. Div. LEXIS 2165 (N.Y. Ct. App. 2002).

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Opinion

In a support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County (Koenig, J.), dated December 15, 1999, which confirmed a determination of the same court (Miller, H.E.), dated October 15, 1999, finding that she was in willful violation of an order of support of the same court, dated July 8, 1998, and directed her incarceration for a term of six months imprisonment based on her contempt.

Ordered that the order is affirmed, without costs or disbursements.

“[Fjailure to pay support as ordered itself constitutes ‘prima facie evidence of a willful violation’ ” (Matter of Powers v Powers, 86 NY2d 63, 69, quoting Family Ct Act § 454 [3] [a]). Thus, proof that the mother failed to pay support as ordered alone establishes willfulness, shifting the burden of going forward to the mother to demonstrate some evidence of an inability to pay (see, Matter of Powers v Powers, supra at 69; Matter of Nieves v Gordon, 264 AD2d 445; Matter of Warner v Monroe, 262 AD2d 684, 686; Matter of Makawi v Makawi, 262 AD2d 487; Matter of Modica v Thompson, 258 AD2d 653, 654).

In light of the mother’s testimony that she could have made at least partial payments of her child support obligation, we find no basis to disturb the Family Court’s conclusion that her disobedience of a prior order of support was willful (see, Matter of Makawi v Makawi, supra at 487).

The mother’s remaining contentions are without merit. S. Miller, J.P., Luciano, Schmidt and Crane, JJ., concur.

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In a support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County (Koenig, J.), dated December 15, 1999, which confirmed a determination of the same court (Miller, H.E.), dated October 15, 1999, finding that she was in willful violation of an order of support of the same court, dated July 8, 1998, and directed her incarceration for a term of six months imprisonment based on her contempt.

Ordered that the order is affirmed, without costs or disbursements.

“[Fjailure to pay support as ordered itself constitutes ‘prima facie evidence of a willful violation’ ” (Matter of Powers v Powers, 86 NY2d 63, 69, quoting Family Ct Act § 454 [3] [a]). Thus, proof that the mother failed to pay support as ordered alone establishes willfulness, shifting the burden of going forward to the mother to demonstrate some evidence of an inability to pay (see, Matter of Powers v Powers, supra at 69; Matter of Nieves v Gordon, 264 AD2d 445; Matter of Warner v Monroe, 262 AD2d 684, 686; Matter of Makawi v Makawi, 262 AD2d 487; Matter of Modica v Thompson, 258 AD2d 653, 654).

In light of the mother’s testimony that she could have made at least partial payments of her child support obligation, we find no basis to disturb the Family Court’s conclusion that her disobedience of a prior order of support was willful (see, Matter of Makawi v Makawi, supra at 487).

The mother’s remaining contentions are without merit. S. Miller, J.P., Luciano, Schmidt and Crane, JJ., concur.

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292 A.D.2d 387, 738 N.Y.S.2d 612, 2002 N.Y. App. Div. LEXIS 2165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-v-john-nyappdiv-2002.

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