Clarke v. Clarke

193 A.D.3d 929

142 N.Y.S.3d 432 (Mem)

In the Matter of Catherine A. CLARKE, respondent,

v.Morgan L. CLARKE, appellant.

(Proceeding No. 1)

In the Matter of Morgan L. Clarke, appellant,

v.Catherine A. Clarke, respondent.

(Proceeding No. 2)

2019-02592

2019-04791

2019-04792

Docket Nos. F-2412-16/18C/18D

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

Submitted—January 4, 2021

April 21, 2021

Ralph R. Carrieri, St. James, NY, for appellant.

Anthony DiPaolo, P.C., Queens Village, NY, for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Nassau County (Ayesha K. Brantley, J.), dated February 11, 2019, (2) an order of the same court dated April 3, 2019, and (3) an order of the same court dated April 8, 2019. The order dated February 11, 2019, insofar as appealed from, confirmed so much of an order of disposition of the same court (Tomasina C. Mastroianni, S.M.) dated January 16, 2019, made after a hearing, as determined that the father willfully violated a prior order of child support. The order dated April 3, 2019, denied the father's objections to the order of disposition, which, inter alia, awarded the mother $34,421.23 in child support arrears as of November 12, 2018, and, in effect, denied the father's petition for a downward modification of his child support obligation. The order dated April 8, 2019, insofar as appealed from, denied that branch of the father's motion which was for leave to reargue his objections to the order of disposition.

ORDERED that the appeal from the order dated April 8, 2019, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated February 11, 2019, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated April 3, 2019, is affirmed, without costs or disbursements.

Contrary to the father's contentions, the Family Court properly denied his objections to an order of disposition of the Support Magistrate dated January 16, 2019, which, after a hearing, determined that he willfully violated the child support terms of the parties' judgment of divorce by not paying child support from July 22, 2016, to April 12, 2018, in effect, denied his petition for a downward modification of his child support obligation, and awarded the mother $34,421.23 in child support arrears as of November 12, 2018.

The Support Magistrate properly determined that the father's violation of the child support terms of the parties' judgment of divorce was willful. The father failed to satisfy his burden of proving an inability to pay that would defeat the mother's prima facie case of willful violation (see Matter of Camaiore v. Farance, 184 A.D.3d 561, 122 N.Y.S.3d 910 ; Matter of Martin v. Claesgens, 165 A.D.3d 1392, 86 N.Y.S.3d 276 ; Matter of...