BARKSDALE, HEIDI v. GORE, JEFFERY M. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1352
CAF 11-02134
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
IN THE MATTER OF HEIDI BARKSDALE,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
JEFFERY M. GORE, SR., RESPONDENT-APPELLANT.
EMILY A. VELLA, SPRINGVILLE, FOR RESPONDENT-APPELLANT.
STEPHEN D. MILLER, OLEAN, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Cattaraugus County
(Larry M. Himelein, J.), entered October 14, 2011 in a proceeding
pursuant to Family Court Act article 4. The order, inter alia,
sentenced respondent to four months in jail.
It is hereby ORDERED that said appeal from the order insofar as
it concerns commitment to jail is unanimously dismissed and the order
is otherwise affirmed without costs.
Memorandum: Respondent appeals from an order confirming the
determination of the Support Magistrate that respondent had willfully
violated a prior child support order and that committed him to a four-
month jail term. We affirm the order with respect to the willful
violation of the support order. “There is a presumption that a
respondent has sufficient means to support his or her . . . minor
children . . . , and the evidence that respondent failed to pay
support as ordered constitutes ‘prima facie evidence of a willful
violation’ ” (Matter of Christine L.M. v Wlodek K., 45 AD3d 1452,
1452, quoting Family Ct Act § 454 [3] [a]; see Matter of Jelks v
Wright, 96 AD3d 1488, 1489). Consequently, the evidence submitted by
petitioner that respondent failed to pay support as set forth in the
prior order was sufficient to establish that he willfully violated
that prior order. Thus, the burden shifted to respondent to submit
“some competent, credible evidence of his inability to make the
required payments” (Matter of Powers v Powers, 86 NY2d 63, 70; see
Jelks, 96 AD3d at 1489). Respondent did not present evidence
establishing that he made reasonable efforts to obtain gainful
employment to fulfill his support obligation, and he therefore failed
to meet that burden (see Jelks, 96 AD3d at 1489; Matter of Hunt v
Hunt, 30 AD3d 1065, 1065).
Respondent’s contention that a jail term was improperly imposed
is moot inasmuch as that part of the order with regard to the
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CAF 11-02134
commitment has expired by its own terms (see Matter of Alex A.C.
[Maria A.P.], 83 AD3d 1537, 1538; Matter of Lomanto v Schneider, 78
AD3d 1536, 1537). We therefore dismiss respondent’s appeal from that
part of the order (see Alex A.C., 83 AD3d at 1538).
Entered: December 28, 2012 Frances E. Cafarell
Clerk of the Court