Kaplan v. Kaplan

102 A.D.3d 873, 957 N.Y.S.2d 903

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 2013
• Status: Published

Opinion

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from stated portions of an order of commitment of the Family Court, Nassau County (Greenberg, J.), dated September 7, 2011, which was issued upon the confirmation of an order of disposition and findings of fact of the same court (Miller, S.M.), both dated July 12, 2011, made after a hearing, finding that he willfully violated a child support order.

Ordered that the order of commitment is affirmed insofar as appealed from, without costs or disbursements.

Proof of failure to pay child support as ordered constitutes prima facie evidence of a willful violation of an order of support (see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]). Once a prima facie showing has been made, the burden shifts to the party that owes the support to offer some competent, credible evidence of his or her inability to make the required payments (see Matter of Powers v Powers, 86 NY2d at 69-70). Here, upon the petitioner’s prima facie showing of the father’s failure to pay child support as ordered, the father failed to meet his burden of offering competent, credible evidence of his inability to make the required payments (see Matter of Logue v Abell, 97 AD3d 582, 583 [2012]; Matter of Phillips v Giddings, 96 AD3d 950, 951 [2012]; Matter of Cooper v Robertson, 69 AD3d 714, 714 [2010]; Matter of Accettulli v Accettulli, 38 AD3d 766 [2007]; Matter of Vasconcellos v Vasconcellos, 37 AD3d 613 [2007]; Matter of Teller v Tubbs, 34 AD3d 593 [2006]). Accordingly, the Family Court properly determined that the father willfully violated an order of child support. Rivera, J.P., Chambers, Roman and Cohen, JJ, concur.