Santana v. Perez
Matter of
2010
NY Slip Op 02161
Decided
on March 16, 2010
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 16, 2010
SUPREME
COURT OF THE STATE OF
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO
E. RIVERA, J.P.
FRED
T. SANTUCCI
RANDALL
T. ENG
CHERYL
E. CHAMBERS, JJ.
2009-04524
(Docket
No. F-13391-07)
[*1]In
the Matter of Westchester County Commissioner of Social Services, on behalf of
Tiffany Santana, respondent,
v
Alex Perez, appellant. George E.
Reed, Jr.,
Robert
F. Meehan,
Dolgin-Kmetz
and Thomas G. Gardiner of counsel), for respondent.
DECISION
& ORDER
In
a child support proceeding pursuant to Family Court Act article 4, the father
appeals from an order of the Family Court, Westchester County (Horowitz, J.),
dated April 17, 2009, which, after a hearing, adjudged him to be in willful
violation of a child support order of the same court dated April 18, 2008, and
committed him to the Westchester County Correctional Facility for a term of
imprisonment of three months.
ORDERED
that the appeal from so much of the order as committed the father to the
Westchester County Correctional Facility for a term of imprisonment of three
months is dismissed as academic, without costs and disbursements, as the period
of incarceration has expired (see Matter of Seleznov
v Pankratova, 57 AD3d 679, 680; Matter of Saintime v Saint Surin, 40 AD3d
1103, 1104; Matter of Kainth v Kainth,
36 AD3d 915); and it is further,
ORDERED
that the order dated April 17, 2009, is reversed insofar as reviewed, on the
law and the facts, without costs or disbursements, and that branch of the
petition which was to adjudicate the father in willful violation of a child
support order dated April 18, 2008, is denied.
Initially,
we note that although the father has completed his sentence, the appeal from so
much of the order dated April 17, 2009, as adjudged him to be in willful
violation of the child support order dated April 18, 2008, is not academic, in
light of the enduring consequences which might flow from the finding that he
violated the order of support (see Matter of Bickwid
v Deutsch, 87 NY2d 862; Matter of Saintime v Saint Surin, 40 AD3d at 1104; Matter of Zullo
v Hom, 10 AD3d 614, 616).
Pursuant
to Family Court Act § 454(3)(a), proof that a respondent has failed to pay
child support, as required by a support order constitutes "prima facie
evidence of a willful violation," and shifts the burden to the respondent
"to offer some competent, credible evidence of his [or her] inability to
make the required payments" (Matter of Powers v Powers, 86 NY2d 63, 69-70;
see Matter of Probert v Probert,
67 AD3d 806, 807; Matter of Orange County Commr of
Social Servs. v Davis, 67 AD3d 1018; Matter of
Brennan v Burger, 63 AD3d 922, 923). Contrary to the Family Court's
determination, [*2]the father sustained his burden of
demonstrating his financial inability to make the payments required by the
child support order dated April 18, 2008. The father presented uncontroverted evidence that, since losing his position as
a security guard in 2004, he has been able to obtain only sporadic employment
at low wages, and has no savings or other assets. Under these circumstances,
the finding that his violation of the child support order was willful was not
supported by the record (see Matter of Orange County Commr
of Social Servs. v Davis, 67 AD3d 1018; Matter of
Brennan v Burger, 63 AD3d at 923; Matter of Kainth v Kainth, 36 AD3d at 916; Matter of Beck v Beck, 228 AD2d
672). Accordingly, that branch of the petition which was to adjudicate the
father in willful violation of the child support order should have been denied.
The
parties' remaining contentions are without merit, or need not be reached in
light of our determination.
RIVERA,
J.P., SANTUCCI, ENG and CHAMBERS, JJ., concur.
ENTER:
James
Edward Pelzer
Clerk
of the Court