Powers v. Powers

Mercure, J. (dissenting).

I dissent. Because I agree with Family Court’s conclusion that at the June 3, 1992 hearing on the violation petition respondent presented insufficient evidence to excuse or justify his failure to honor the support obligations stipulated to and embodied in the November 1991 Family Court order, I would affirm.

Initially, it should not go unnoticed that respondent is a self-employed certified public accountant operating in a sole proprietorship. As an accountant, respondent is an expert in the preparation of financial accounts and reports; as a sole practitioner, he is reasonably insulated from outside scrutiny concerning his income and the amount of and necessity for his business expenses. As recognized by the majority, respondent’s failure to pay the support provided for in the November 1991 order constituted prima facie evidence of his willful violation thereof (Family Ct Act § 454 [3] [a]). Further, respondent acknowledges that during the period from September 29, 1991 to May 9, 1992 he had business receipts of $70,584, which projects to the substantial annual gross income of approximately $115,000. Despite that fact, respondent made less than half of the scheduled support payments following the November 1991 order, even with the stipulated reduction from $600 to $475 per week. Although respondent claims business expenses of $53,624 during the same period, he produced no original records or books of account. Rather, he presented only his own income and expense summaries, prepared specifically for the hearing. More important, respondent offered no evidence of the business necessity for any of the expenses, and my review of respondent’s summaries suggests that many were not truly necessary.

Under the circumstances, I disagree with the majority’s conclusion that respondent made a prima facie "[demonstration of] his limited income and his efforts to meet his obligations”. To the contrary, respondent showed nothing other than the manner in which he chose to spend his substantial income during the period in question (see, Matter of Department of Social Servs. v Hillock, 96 AD2d 625; cf., Matter of Carella v Collins, 144 AD2d 78, 83; Matter of Cole v Cole, 65 AD2d 643).

Ordered that the order is modified, on the law, without costs, by reversing so much thereof as found respondent to be in contempt of court and ordered his commitment; petition dismissed; and, as so modified, affirmed.