MATTER OF KRETKOWSKI v. PASQUA

NO. 2015-12127, F-05223-10/14G

147 A.D.3d 836 (2017)

47 N.Y.S.3d 347

2017 NY Slip Op 00974

In the Matter of LAURA M. KRETKOWSKI, Respondent, v. ADAM S. PASQUA, Appellant.

Appellate Division of the Supreme Court of New York, Second Department.


Appeal by the father from an order of commitment of the Family Court, Nassau County (Conrad D. Singer, J.), dated October 28, 2015. The order of commitment, in effect, confirmed findings of fact and an order of disposition of that court (Tomasina C. Mastroianni, S.M.), dated September 30, 2015, and October 8, 2015, respectively, made after a hearing, finding that the father willfully violated a prior order of support, and committed him to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $17,500.

Ordered that the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 90 days is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Dezil v Garlick, 136 A.D.3d 904 [2016]); and it is further,

Ordered that the order of commitment is affirmed insofar as reviewed, without costs or disbursements.

The mother commenced this proceeding against the father, alleging that he was in willful violation of a child support order dated August 27, 2014. Following a hearing, the Support Magistrate found that the father was in willful violation of the child support order and issued an order of disposition recommending that the court consider a period of incarceration. The Family Court, in effect, confirmed the Support Magistrate's findings of fact, granted the mother's petition, and issued an order of commitment committing the father to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $17,500. The father appeals.

Although the appeal from so much of the order of commitment as directed that the father be incarcerated must be dismissed as academic, the appeal from so much of the order of commitment as, in effect, confirmed the finding and determination that the father was in willful violation of the child support order is not academic in light of the enduring consequences which could flow from the finding that he violated the child support order (see Matter of Stradford v Blake, 141 A.D.3d 725, 725 [2016]; Matter of Dezil v Garlick, 136 A.D.3d 904 [2016]; Matter of Rodriguez v Suarez, 93 A.D.3d 730 [2012]).

Under Family Court Act § 454 (3) (a), which relates to "willful" failures to obey support orders, a "`failure to pay support as ordered itself constitutes prima facie evidence of a willful violation'" (Matter of Dezil v Garlick, 136 AD3d at 905 [internal quotation marks omitted], quoting Matter of Powers v Powers, 86 N.Y.2d 63, 69 [1995]; see Family Ct Act § 454 [3] [a]). This means that "`proof that respondent has failed to pay support as ordered alone establishes petitioner's direct case of willful violation, shifting to respondent the burden of going forward'" (Matter of Dezil v Garlick, 136 AD3d at 905, quoting Matter of Powers v Powers, 86 NY2d at 69).

Here, the mother presented proof that the father failed to pay child support as ordered (see Matter of Saintime v Saint Surin, 40 A.D.3d 1103 [2007]). The burden of going forward then shifted to the father to offer competent, credible evidence of his inability to make the required payments (see Matter of Powers v Powers, 86 NY2d at 69; Matter of Dezil v Garlick, 136 AD3d at 905). The father failed to sustain his burden. Even assuming the truth of the father's contention that he had been unemployed in his chosen field since he lost his professional licenses, he failed to present any evidence that he had made a reasonable and diligent effort to secure employment. Thus, the father failed to meet his burden of presenting competent, credible evidence that he was unable to make payments as directed (see Matter of Stradford v Blake, 141 AD3d at 726; Matter of Dezil v Garlick, 136 AD3d at 905; Matter of Nassau County Dept. of Social Servs. v Henry, 136 A.D.3d 639 [2016]; Matter of Girasek-Brick v Girasek, 127 A.D.3d 861 [2015]).

Accordingly, the Family Court properly, in effect, confirmed the determination of the Support Magistrate that the father willfully violated the child support order (see Matter of Stradford v Blake, 141 AD3d at 726; Matter of Dezil v Garlick, 136 AD3d at 905).


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