Matter of Maharaj-Ellis v. Laroche , 17 N.Y.S.3d 657 ( 2015 )

Matter of Maharaj-Ellis v Laroche (2015 NY Slip Op 07505)

Matter of Maharaj-Ellis v Laroche

2015 NY Slip Op 07505

Decided on October 14, 2015

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 October 14, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX, JJ.

2014-11251
(Docket No. F-4700-96)

[*1]In the Matter of Rashed Maria Maharaj-Ellis, respondent,

v

Daniel Laroche, appellant.

Friedman & Friedman, Garden City, N.Y. (Andrea B. Friedman of counsel), for appellant.

Adrian A. Ellis, LLC, Brooklyn, N.Y., for respondent.

DECISION & ORDER

Appeal from an order of the Family Court, Kings County (Michael L. Katz, J.), dated November 12, 2014. The order, insofar as appealed from, denied the father's objections to stated portions of an order of that court (John M. Fasone, S.M.), dated May 28, 2014, which, after a hearing and upon a finding that he willfully violated a prior order of child support, among other things, awarded the mother the principal sum of $65,416.59.

ORDERED that the order dated November 12, 2014, is affirmed insofar as appealed from, with costs.

The Family Court correctly denied the father's objections to stated portions of the Support Magistrate's order. The mother established that the subject child was a competitive ice skater, and that the father failed to contribute to the child's ice skating expenses as ordered, which constituted prima facie proof of his willful violation of a support order (see Family Ct Act § 454[3][a]; Matter of Powers v Powers, 86 NY2d 63, 69). In addition, the father failed to come forward with competent, credible evidence that his failure to contribute to the child's ice skating expenses as ordered was not willful (see Matter of Schell v McSpedon, 119 AD3d 591; Matter of Pascarella v Pascarella, 66 AD3d 909).

Furthermore, while the mother did not petition to hold the father in contempt in accordance with the notice requirements of Family Court Act § 453(b), the Support Magistrate was not precluded from making a finding that the father willfully failed to comply with a support order, and thereupon awarding the mother an attorney's fee pursuant to Family Court Act § 438(b) (see Matter of Natali v Natali, 30 AD3d 1010, 1011; cf. Matter of Peled v Kamkahachi, 77 AD3d 837). Moreover, upon finding that the father willfully failed to comply with a support order, the Support Magistrate properly directed the father to pay interest pursuant to Family Court Act § 460(1).

The father's remaining contentions are without merit.

HALL, J.P., AUSTIN, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court