Alterman v. Shmushkovich

183 A.D.3d 559

121 N.Y.S.3d 672 (Mem)

In the Matter of Svetlana ALTERMAN, Respondent,

v.Alex SHMUSHKOVICH, Appellant.

2019–06349

Docket No. F–25732–13/17G

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

Submitted - January 9, 2020

May 6, 2020

Salvatore C. Adamo, New York, NY, for appellant.

Ehrlich Gayner, LLP, New York, N.Y. (Charles J. Gayner of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Kings County (Robert D. Mulroy, J.), dated May 7, 2019. The order of commitment, in effect, confirmed so much of an order of the same court (Kathryn A. Baur, S.M.) dated July 26, 2018, made after a hearing, as found that the father willfully violated a prior order of child support, and committed him to the custody of the New York City Department of Correction for a period of six months unless he paid the purge amount of $14,000.

ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the New York City Department of Correction for a period of six months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Stradford v. Blake, 141 A.D.3d 725, 35 N.Y.S.3d 467 ); and it is further,

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

The parties were divorced in 2011 and have one child together. In January 2017, the mother commenced this proceeding against the father, alleging that he was in willful violation of an order of child support dated July 14, 2011. Following a hearing, the Support Magistrate found, inter alia, that the father had willfully failed to comply with his child support obligations and recommended that the father be incarcerated. Thereafter, in an order of commitment dated May 7, 2019, the Family Court, in effect, confirmed the Support Magistrate's determination, and committed the father to the custody of the New York City Department of Correction for a period of six months unless he paid the purge amount of $14,000. The father appeals.

Although the appeal from so much of the order of commitment as committed the father to the custody of the New York City Department of Correction for a period of six months must be dismissed as academic, the appeal from so much of the order of commitment as, in effect, confirmed the finding that the father was in willful violation of the order of child support is not academic in light of the enduring consequences which could flow from the finding that he violated the order of child support (see Matter of Stradford v. Blake, 141 A.D.3d 725, 35 N.Y.S.3d 467 ).

"Great deference should be given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses" ( Matter of Ferrer v. Brown, 165 A.D.3d 929, 930, 86 N.Y.S.3d 208 ). Failure to pay support, as ordered, constitutes prima facie evidence of a willful violation (see Family Ct Act § 454[3][a] ; Matter of Brewster v. Davidson, 173 A.D.3d 1176, 1177, 101 N.Y.S.3d 621 ). Once a prima facie showing of willfulness has been made, the burden shifts to the party who owes the support to offer some competent, credible evidence of his or her inability to comply with the order (see Family Ct Act § 455[5] ; Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Nassau County Dept. of Social Servs. v. Henry, 136 A.D.3d 639, 640, 24 N.Y.S.3d 222 ).

Here, the mother presented prima facie evidence of the father's failure to meet his support obligations as set forth in the order of child support (see Matter of Detore v. Detore, 173 A.D.3d 1181, 1183, 105 N.Y.S.3d 473 ; Matter of Brewster v. Davidson, 173 A.D.3d at 1177, 101 N.Y.S.3d 621 ; Matter of Nickel v. Nickel, 172 A.D.3d 1210, 1211, 98 N.Y.S.3d 890 ; Matter of Murray v. Fils–Aime, 170 A.D.3d 847, 849, 93 N.Y.S.3d 889 ). In response, the father failed to offer competent, credible evidence of his inability to comply with the order of child support (see Matter of Nickel v....