Konig v. Fabrizio

176 A.D.3d 1066

108 N.Y.S.3d 883 (Mem)

In the Matter of Catherine R. KONIG, Respondent,

v.Joseph P. FABRIZIO, Appellant.

2018–12547

Docket No. F–02893–18/18B

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

Submitted—September 16, 2019

October 23, 2019

Amy Colvin, Huntington, NY, for appellant.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, HECTOR D. LASALLE, 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, Nassau County (Danielle M. Peterson, J.), dated September 14, 2018. The order of commitment, in effect, confirmed an order of disposition of the same court (Elizabeth A. Bloom, S.M.), dated August 10, 2018, made after a hearing, finding that the father willfully violated a prior order of child support, and committed him to the custody of the Nassau County Correctional Facility for a period of 60 days unless he paid the purge amount of $5,000.

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 60 days 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 mother, the custodial parent of the parties' child, commenced this proceeding alleging that the father was in willful violation of an order of child support dated May 16, 2018, pursuant to which the father was directed to pay $119 per week in child support and $121 per week toward his accumulated child support arrears. Following a hearing, at which the father was represented by assigned counsel, the Support Magistrate issued an order of disposition finding that the father's failure to pay support as ordered was willful. In an order of commitment dated September 14, 2018, the Family Court, in effect, confirmed the Support Magistrate's order and committed the father to the custody of the Nassau County Correctional Facility for a period of 60 days unless he paid the purge amount of $5,000. The father appeals from the order of commitment.

Although 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 60 days must be dismissed as academic, the appeal from so much of the order of commitment as, in effect, confirmed the Support Magistrate's finding that the father was in willful violation of the order of support is not academic in light of the enduring consequences which could flow from the finding that he violated the order of support (see Matter of Brewster v. Davidson, 173 A.D.3d 1176, 1177, 101 N.Y.S.3d 621 ; Matter of Murray v. Fils–Aime, 170 A.D.3d 847, 848, 93 N.Y.S.3d 889 ).

" ‘The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ " (Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892, quoting Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ). " ‘In making such a determination, the court must undertake a balanced consideration of all relevant factors’ " (Matter of Lorys v. Powell, 116 A.D.3d at 1048, 983 N.Y.S.2d 892, quoting Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, ...