GREENE, PHILEMON v. HANSON, SHEILA ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1224
CAF 11-00707
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
IN THE MATTER OF PHILEMON GREENE,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
SHEILA HANSON, RESPONDENT-RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR PETITIONER-APPELLANT.
Appeal from an order of the Family Court, Monroe County (Joan S.
Kohout, J.), entered March 4, 2011 in a proceeding pursuant to Family
Court Act article 4. The order denied petitioner’s objections to the
order of the Support Magistrate.
It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Memorandum: Petitioner father appeals from an order denying his
objections to the order of the Support Magistrate, wherein the Support
Magistrate found that the father had willfully violated a child support
order and denied his petition seeking modification of that order.
Family Court properly denied the father’s objections. There is a
statutory presumption that the father had sufficient means to support
his minor children (see Family Ct Act § 437; Matter of Powers v Powers,
86 NY2d 63, 68-69), and the father’s failure to pay support as directed
in the support order constitutes “prima facie evidence of a willful
violation” (§ 454 [3] [a]). The burden then shifted to the father to
present “some competent, credible evidence of his inability to make the
required payments” (Powers, 86 NY2d at 70). The father did not meet
that burden inasmuch as he “failed to present evidence establishing that
he made reasonable efforts to obtain gainful employment to meet his . .
. support obligations” (Matter of Christine L. M. v Wlodek K., 45 AD3d
1452, 1452 [internal quotation marks omitted]). Indeed, although the
father testified that he has been a carpenter for 16 years, he did not
testify that he made any efforts to obtain any carpentry work once he
ceased to operate his construction company. The father likewise failed
to demonstrate a substantial change in circumstances that would justify
a downward modification of his support obligation because he presented
no “evidence establishing that he diligently sought re-employment
commensurate with his former employment” (Matter of Leonardo v Leonardo,
-2- 1224
CAF 11-00707
94 AD3d 1452, 1453, lv denied 19 NY3d 807).
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court