Valverde v. Owens

160 A.D.3d 753

71 N.Y.S.3d 374 (Mem)

In the Matter of Mary A. VALVERDE, respondent,

v.Clifford V. OWENS III, appellant. (Proceeding No. 1)

In the Matter of Clifford V. Owens III, appellant,

v.Mary A. Valverde, respondent. (Proceeding No. 2)

2017–01418

Docket Nos. F–23123–14/14A

F–407–15/15A

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

Submitted—February 6, 2018

April 11, 2018

Diana H. Kelly, Jamaica, NY, for appellant.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Queens County (Mildred T. Negron, J.), dated January 9, 2017. The order, insofar as appealed from, denied the father's objections to (1) so much of an order of the same court (Michael J. Fondacaro, S.M.) dated August 5, 2016, as, after a hearing, found that the father willfully violated a prior order of child support, and (2) an order of the same court (Michael J. Fondacaro, S.M.), also dated August 5, 2016, which dismissed the father's petition for a downward modification of his child support obligation.

ORDERED that the order dated January 9, 2017, is affirmed insofar as appealed from, without costs or disbursements.

The mother and the father have two children together. In an order of support dated September 19, 2014, entered on consent, the father was directed to pay, inter alia, monthly child support in the sum of $1,000. The mother filed a petition alleging that the father was in willful violation of the order of support. The father filed a petition for a downward modification of his child support obligation. Following a hearing, the Support Magistrate issued an order, inter alia, finding that the father willfully violated the order of support, and a separate order dismissing the father's petition. The Family Court denied the father's objections to the Support Magistrate's orders. The father appeals.

"[P]roof that a respondent has failed to pay support as ordered establishes the petitioner's direct case of willful violation" ( Matter of Rojas–Parades v. Lewis, 149 A.D.3d 844, 845, 51 N.Y.S.3d 601 ; see Family Ct Act § 454[3] [a] ; Matter of Rafferty v. Ettinger, 150 A.D.3d 1016, 1016, 55 N.Y.S.3d 145 ; Matter of Kretkowski v. Pasqua, 147 A.D.3d 836, 837, 47 N.Y.S.3d 347 ). Once a prima facie showing of willfulness has been made, the burden shifts to the party that owes the support "to offer some competent, credible evidence of his [or her] inability to make the required payments" ( Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; see Matter of Rafferty v. Ettinger, 150 A.D.3d at 1016, 55 N.Y.S.3d 145 ; Matter of Rojas–Parades v. Lewis, 149 A.D.3d at 845, 51 N.Y.S.3d 601 ; Matter of Kretkowski v. Pasqua, 147 A.D.3d at 837, 47 N.Y.S.3d 347; Matter of Myles v. Turner, 137 A.D.3d 1038, 1039, 26 N.Y.S.3d 609 ). "Great deference should be given to the determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered" ( Matter of Musarra v. Musarra, 28 A.D.3d 668, 669, 814 N.Y.S.2d 657 ).

Here, the mother presented prima facie evidence of the father's willful violation of the order of support and, in response, the father failed to offer any competent, credible evidence of his inability to make the required payments. Thus, the Family Court correctly determined that the mother sustained her burden of proving a willful violation (see Matter of Logue v. Abell, 97 A.D.3d 582, 583, 947 N.Y.S.2d 329 ; Matter of Cooper v. Robertson, 69 A.D.3d 714, 714, 892 N.Y.S.2d 522 ; Matter of Teller v. Tubbs, 34 A.D.3d 593, 594, 824 N.Y.S.2d 387 ).

As to the father's petition, Family Court Act § 451(3)(a) provides that "[t]he court may modify an order of child support ... upon a showing of a substantial change in circumstances." In addition, the court may modify an order of child support where "there has been a change in...