Matter of Apuzzo v. Cazeau

Appellate Division of the Supreme Court of New York

Matter of Apuzzo v. Cazeau

127 A.D.3d 745, 4 N.Y.S.3d 544

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

DecidedApril 1, 2015

Docket2014-00400

StatusPublished

This text of 127 A.D.3d 745 (Matter of Apuzzo v. Cazeau) 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

Matter of Apuzzo v. Cazeau, 127 A.D.3d 745, 4 N.Y.S.3d 544 (N.Y. Ct. App. 2015).

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Opinion

Appeal from an order of the Family Court, Rockland County (William R Warren, J.), dated December 4, 2013. The order denied the mother’s objections to an order of the same court (Catherine M. Miklitsch, S.M.), which, after a hearing, denied her petition alleging that the father was in willful violation of an order of child support.

Ordered that the order dated December 4, 2013, is affirmed, without costs or disbursements.

Contrary to the mother’s contention, she was afforded her right to due process at the hearing on her violation petition (see Matter of Bianco v Bruce-Ross, 107 AD3d 886, 887 [2013]).

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]; Matter of Logue v Abell, 97 AD3d 582 [2012]). 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 Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]).

Here, the evidence presented at the hearing with respect to the father’s arrears satisfied the mother’s prima facie burden (see Family Ct Act § 454 [3] [a]; Matter of Bianco v Bruce-Ross, 107 AD3d at 887). However, under the circumstances of this case, the father, by adducing competent, credible evidence of his inability to make the required payments, met his burden of establishing that he did not willfully violate the subject child support order (see Matter of Granberg v Granberg, 112 AD3d 714 [2013]; Matter of Lecei v Lecei, 112 AD3d 629, 630 [2013]).

Accordingly, the Family Court properly denied the mother’s objections to the Support Magistrate’s order denying her petition alleging that the father was in willful violation of the child support order.

Mastro, J.R, Dillon, Hall and Miller, JJ., concur.

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Appeal from an order of the Family Court, Rockland County (William R Warren, J.), dated December 4, 2013. The order denied the mother’s objections to an order of the same court (Catherine M. Miklitsch, S.M.), which, after a hearing, denied her petition alleging that the father was in willful violation of an order of child support.

Ordered that the order dated December 4, 2013, is affirmed, without costs or disbursements.

Contrary to the mother’s contention, she was afforded her right to due process at the hearing on her violation petition (see Matter of Bianco v Bruce-Ross, 107 AD3d 886, 887 [2013]).

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]; Matter of Logue v Abell, 97 AD3d 582 [2012]). 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 Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]).

Here, the evidence presented at the hearing with respect to the father’s arrears satisfied the mother’s prima facie burden (see Family Ct Act § 454 [3] [a]; Matter of Bianco v Bruce-Ross, 107 AD3d at 887). However, under the circumstances of this case, the father, by adducing competent, credible evidence of his inability to make the required payments, met his burden of establishing that he did not willfully violate the subject child support order (see Matter of Granberg v Granberg, 112 AD3d 714 [2013]; Matter of Lecei v Lecei, 112 AD3d 629, 630 [2013]).

Accordingly, the Family Court properly denied the mother’s objections to the Support Magistrate’s order denying her petition alleging that the father was in willful violation of the child support order.

Mastro, J.R, Dillon, Hall and Miller, JJ., concur.

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127 A.D.3d 745, 4 N.Y.S.3d 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-apuzzo-v-cazeau-nyappdiv-2015.

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