Wilkinson v. Wilkinson

232 A.D.2d 572, 648 N.Y.S.2d 960, 1996 N.Y. App. Div. LEXIS 10412

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1996
• Status: Published

Opinion

—In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Koenig, J.), dated February 9, 1995, which found him to be in willful violation of an order of support and committed him to the Nassau County Correctional Center for a period of six months.

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

The proof before the Hearing Examiner of the father’s failure to pay court-ordered child support constituted prima facie evidence of a willful violation of the support order (see, Family Ct Act § 454 [3] [a]). The burden of going forward then shifted to the father to offer competent, credible evidence of his inability to comply with the order (see, Matter of Powers v Powers, 86 NY2d 63, 69-70; Family Ct Act § 455 [5]). The father, however, failed to present any credible proof that he was financially unable to make the required payments. Contrary to the father’s contention, his willful violation of the support order was established by clear and convincing evidence (see, Reisner v Reisner, 224 AD2d 602; Matter of Porcelain v Porcelain, 143 AD2d 834). Mangano, P. J., Rosenblatt, Sullivan and Hart, JJ., concur.