Maria T. v. Kwame A.

35 A.D.3d 239, 826 N.Y.S.2d 42

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 2006
• Status: Published

Opinion

Order, Family Court, New York County (Susan Larabee, J.), entered on or about April 16, 2004, which adopted findings of the Support Magistrate, dated March 31, 2004, and, inter alia, found respondent in willful violation of an order of support, unanimously affirmed, without costs.

Respondent’s admitted failure to pay support as ordered constituted prima facie evidence of a willful violation, and shifted to him the burden of going forward (Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]). There is no basis for disturbing the Support Magistrate’s findings, based largely on his assessments of witness credibility (see Matter of Childress v Samuel, 27 AD3d 295, 296 [2006]), that respondent failed to show that he had made reasonable efforts to obtain gainful employment (see Spector v Spector, 18 AD3d 380, 382 [2005]; Matter of Dorner v McCarroll, 271 AD2d 530 [2000]) or to demonstrate through admissible evidence (see Family Ct Act § 439 [d]; Matter of Commissioner of Social Servs. v Albertson, 233 AD2d 441 [1996]) other than his own testimony that a medical condition prevented him from working full time. We note that, even if he went abroad to care for a sick parent, his choice to forgo employment to do so constituted a willful violation (see Griffin v Griffin, 294 AD2d 188 [2002]). Concur—Tom, J.P., Andrias, Marlow, Nardelli and McGuire, JJ.