HUARD, SHANNON v. LUGO, JOSE ( 2011 )


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  •          SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    36
    CAF 09-02492
    PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.
    IN THE MATTER OF SHANNON HUARD,
    PETITIONER-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    JOSE LUGO, RESPONDENT-APPELLANT.
    CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.
    Appeal from an order of the Family Court, Erie County (Kevin M.
    Carter, J.), entered November 10, 2009 in a proceeding pursuant to
    Family Court Act article 4. The order confirmed the Support
    Magistrate’s determination that respondent willfully failed to obey an
    order of support and sentenced respondent to 90 days in jail.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Respondent father appeals from an order confirming
    the determination of the Support Magistrate that he willfully violated
    an order of child support and sentencing him to a term of
    incarceration of 90 days. The father contends that the Support
    Magistrate erred in allowing him to proceed pro se at the fact-finding
    hearing. We conclude that the father failed to preserve that
    contention for our review.
    We note at the outset that the father did not file any objections
    to the Support Magistrate’s order (see generally Family Ct Act § 439
    [e]). In Matter of Oswego County Support Collection Unit v Richards
    (305 AD2d 1101, lv denied 100 NY2d 637), we determined that, because
    the respondent failed to file objections to the Hearing Examiner’s
    order finding willfulness and recommending commitment pursuant to
    Family Court Act § 439 (former [e]), he “waiv[ed] his right to
    appellate review of the finding of a willful violation . . . .”
    Section 439 (e), however, was revised in 2004 by providing that a
    determination of willful violation of a support order where commitment
    is recommended does not constitute a final order (see L 2004, ch 336,
    § 3; Assembly Mem in Support, Bill Jacket, L 2004, ch 336, at 4-5).
    “A determination by a support magistrate that a person is in willful
    violation of a support order and recommending commitment has no force
    and effect until confirmed by a Judge of the Family Court . . . Such a
    determination by a support magistrate does not constitute a final
    order to which a party may file written objections” (Matter of Dakin v
    Dakin, 75 AD3d 639, 639-640, lv dismissed 15 NY3d 905; see § 439 [a],
    -2-                            36
    CAF 09-02492
    [e]). A party’s “sole remedy” is to appeal from the final order of
    Family Court (Dakin, 75 AD3d at 640). Thus, to the extent that Matter
    of Oswego County Support Collection Unit v Richards requires a party
    to file objections in order to preserve a contention regarding such a
    determination, it should no longer be followed.
    We conclude, however, that the father failed to preserve his
    contention for our review under the “normal rules of preservation”
    because he failed to raise it before Family Court at the confirmation
    proceeding, where he was represented by counsel (Matter of Michelle
    F.F. v Edward J.F., 50 AD3d 348, 350, lv denied 11 NY3d 708). In any
    event, the father’s contention lacks merit.
    We reject the father’s further contention that petitioner mother
    failed to present clear and convincing evidence that he willfully
    violated the support order. In order to establish a willful violation
    of a support order, there must be “proof of both the ability to pay
    support and the failure to do so” (Matter of Powers v Powers, 86 NY2d
    63, 68). The father is presumed to have sufficient means to support
    his child (see Family Ct Act § 437), and his failure to pay support
    constitutes “prima facie evidence of a willful violation” (§ 454 [3]
    [a]; see Powers, 86 NY2d at 69). “[P]roof that [the father] has
    failed to pay support as ordered alone establishes [the mother’s]
    direct case of willful violation, shifting to [the father] the burden
    of going forward” (Powers, 86 NY2d at 69). The record of the fact-
    finding hearing establishes that there was a court order requiring the
    father to pay child support, and the father conceded that he did not
    pay it. The father testified, however, that he lacked the means to do
    so because he did not want to jeopardize his business or “get [into]
    any tax problems.” We thus conclude that the father failed to offer
    any “competent, credible evidence of his inability to make the
    required payments” (id. at 70; see Matter of Seleznov v Pankratova, 57
    AD3d 679, 680-681).
    Entered:   February 10, 2011                   Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: CAF 09-02492

Filed Date: 2/10/2011

Precedential Status: Precedential

Modified Date: 10/8/2016