Walsh v. Shevlin

307 A.D.2d 322, 763 N.Y.S.2d 469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 2003
• Status: Published

Opinion

—In a proceeding pursuant to Family Court Act article 5, the father appeals from an order of the Family Court, Suffolk County (Dounias, J.), entered March 14, 2002, which denied his objections to an order of the same court (Buse, H.E.), entered January 14, 2002, which, upon remand, adhered to its prior order dated December 13, 2000, made after a hearing, finding that he violated a prior order of child support and awarding arrears in the principal sum of $11,850.

Ordered that the order entered March 14, 2002, is modified, on the law, by reducing the award of arrears of child support from the principal sum of $11,850 to the principal sum of $500; as so modified, the order is affirmed, without costs or disbursements, and the order entered January 14, 2002, and the order dated December 13, 2000, are modified accordingly.

The father’s admitted nonpayment of his child support obligation is evidence of violation of the order of support (see Family Ct Act § 454 [3] [a]). However, the father demonstrated, by clear and convincing evidence, his inability to comply with the order (see Matter of Powers v Powers, 86 NY2d 63, 69 [1995]; Matter of Ahrem v Cattell, 254 AD2d 352 [1998]). The arrears in support accrued while the father’s sole source of income were benefits received from Social Security Disability. Accordingly, we modify the order by reducing the amount of arrears in child support to $500 (see Family Ct Act § 413 [1] [g]).

The parties’ remaining contentions are without merit. Florio, J.P., S. Miller, McGinity and Adams, JJ., concur.