Barrett v. Barrett
Matter of Barrett v Barrett
2011
NY Slip Op 02005
Decided
on March 15, 2011
Appellate
Division, Second Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on March 15, 2011
SUPREME
COURT OF THE STATE OF
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM
F. MASTRO, J.P.
CHERYL
E. CHAMBERS
PLUMMER
E. LOTT
JEFFREY
A. COHEN, JJ.
2010-03633
2010-03634
2010-03635
(Docket
No. F-11731-06/09H, I)
[*1]In
the Matter of Damion R. Barrett, appellant,
v
Aleshia
Maxwell Barrett, respondent. (Appeal Nos. 1 and 2)
In
the Matter of Aleshia Maxwell Barrett, respondent,
v
Damion
R. Barrett, appellant. (Appeal No. 3)
George E. Reed, Jr.,
DECISION
& ORDER
In
two related support proceedings pursuant to Family Court Act article 4, the
husband appeals from (1) an order of the Family Court, Westchester County
(Jordan, S.M.), entered September 30, 2009, which, upon findings of fact of the
same court dated September 28, 2009, made after a hearing, denied his petition
for a downward modification of his spousal and child support obligations as set
forth in a prior order of the same court dated January 30, 2007, (2) an order
of the same court (Horowitz, J.), entered March 15, 2010, which denied his
objections to the order entered September 30, 2009, and (3) an order of the
same court (Horowitz, J.), entered March 17, 2010, which, upon, in effect,
confirming so much of the findings of fact as found that he willfully violated
the spousal and child support provisions of the order dated January 30, 2007,
and recommended that he be incarcerated for a period of six months unless he
purged the contempt by payment of the sum of $7,898, directed his incarceration
for a period of six months with the opportunity to purge the contempt by
payment of the sum of $7,898.
ORDERED
that the appeal from the order entered September 30, 2009, is dismissed,
without costs or disbursements, as that order was superseded by the order
entered March 15, 2010; and it is further,
ORDERED
that the order entered March 15, 2010, is affirmed, without costs or
disbursements; and it is further,
ORDERED that the order entered March 17, 2010, is affirmed,
without costs or disbursements.
The
Family Court properly determined that the appellant, who was required to submit
specific written objections to the order of the Support Magistrate entered
September 30, 2009, within [*2]35 days after that order was mailed to him (see
Family Ct Act § 439[e]), failed to timely submit his written objections to that
order (see Matter of Herman v Herman, 11 AD3d 536). Under these circumstances,
the Family Court properly denied the appellant's objections to the Support
Magistrate's order entered September 30, 2009.
The
Family Court also properly confirmed the Support Magistrate's determination
that the appellant willfully failed to obey the support order (see Family Ct
Act § 439[a]). The appellant's failure to pay support constituted prima facie
evidence of a willful violation of that order (see Family Ct Act § 454[3][a]; Matter of Powers v Powers, 86 NY2d 63, 69). This prima
facie showing shifted the burden to the appellant to come forward with
competent, credible evidence that his failure to pay support in accordance with
the terms of the support order was not willful (see Matter of Powers v Powers,
86 NY2d at 69-70). The appellant failed to satisfy his burden (see Matter of
Falk v Owen, 29 AD3d 991, 991-992).
The
appellant's remaining contentions are without merit.
MASTRO,
J.P., CHAMBERS, LOTT and COHEN, JJ., concur.
ENTER:
Matthew
G. Kiernan
Clerk
of the Court