The father contends that Family Court’s finding that he willfully violated the support order lacks a sound and substantial basis in the record, particularly in light of what he characterizes as his cogent, reasonable explanation for his inability to make good on child support arrears, well-supported by documentary evidence and his reasonable (even extreme) efforts to enhance his income.
We disagree. According to statute, parents are presumed to have the means to support their children who are under the age of 21. The failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation and shifts the burden to the parent who owes the support to come forward with competent, credible evidence of his or her inability to pay. A finding of willfulness, which can result in incarceration, must be supported by clear and convincing evidence.
The testimony from both parties that the father failed to make support payments required by the May 2018 order, the support collection unit report that shows past due child support payments and the mother’s financial disclosure affidavit constituted prima facie evidence of a willful violation.
The father was then required to come forward with competent credible evidence of his inability to pay. The father testified that, since 2017, he has been self-employed as the owner/operator and cook for his restaurant. In addition, he testified that he suffers from high blood pressure and diabetes, which medical issues interfere with his ability to work.
The father testified that he wanted to close his failing business and seek alternative employment, but that his landlord would not release him from his lease. He testified to efforts made to promote the restaurant, such as advertising in a local newspaper and church, and to unsuccessful efforts to procure a loan and a credit card that would have been used to pay child support.
He also made efforts, through a realtor and online, to sell the restaurant and use the proceeds to pay child support. He testified that, if he could sell the business, he might try driving a cab or driving for Uber, despite having testified that he tried to get a job driving a truck but could not due to his high blood pressure.
He also testified that few employment opportunities are available to him as an unskilled and uneducated worker who came to this country in 1999 from Pakistan seeking asylum. He testified that he might return to Pakistan and run for public office.
The Support Magistrate found that that the father’s testimony and documents, while purporting to accurately reflect his finances, failed to establish competent and credible proof of his inability to pay, and that the father willfully violated the May 2018 order.
Included among the documents submitted were a few pay stubs, handwritten and questionable cash sale receipts and a largely incomplete financial disclosure affidavit. The Support Magistrate also found that the father failed to provide competent proof that he was unable to work by reason of health issues or disability, and failed to adequately explain why he could not look for work as a cook or in restaurant management.
According deference to the Support Magistrate’s credibility assessment, which Family Court did not disturb, we agree that the father’s proof was clearly inadequate to meet his burden of showing an inability that would defeat the prima facie case of willful violation.
We find no merit to the father’s contention that Family Court abused its discretion by issuing a 30–day suspended sentence.
Upon a finding that a parent has willfully failed to obey any lawful order of support by clear and convincing evidence, the court may commit the parent to a term of incarceration not to exceed six months (see Family Ct Act § 454[a]).
We note that the father does not challenge the duration of the sentence imposed or that the sentence was conditionally suspended. He argues that incarceration as a punishment for failing to pay child support is an abuse of discretion, since more appropriate alternatives are warranted in light of his employment and obvious good-faith efforts to both continue paying under his current order and defray arrears, and his verifiable explanations for past discrepancies.
Notwithstanding the father’s alleged mitigating circumstances, the suspended term of incarceration imposed is well within the court’s discretion upon its finding that the father willfully failed to obey a lawful support order.
Amanda YY. v. Faisal ZZ., – NYS3d – , 2021 WL 5497289 (3rd Dep’t. 2021)
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