Ahrem v. Cattell

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Suffolk County (Trainor, J.), entered January 9, 1997, which denied his objections to an order of the same court (Lynaugh, H.E.), entered October 25, 1996, which found him to be in willful violation of an order dated March 30, 1993, and granted the petitioner’s application for leave to enter a money judgment in the sum of $7,150 representing support arrears, and (2) from an order of the same court dated January 13, 1997, which, 353 upon finding him in contempt of court for his failure to comply with the order dated March 30, 1993, ordered him imprisoned for a term of six months unless he made a payment of $7,000. Ordered that the orders are affirmed, without costs or disbursements. A prima facie case of willful violation was established by the proof that the father had not paid court ordered child support (see, Family Ct Act § 454 [3] [a]). At that point, the burden of proving inability to pay shifted to the father (see, Matter of Powers v Powers, 86 NY2d 63). We decline to disturb the finding of the Hearing Examiner and the Family Court that the father’s testimony concerning his inability to work due to physical disability was not credible (see, Matter of Liccione v John H., 65 NY2d 826). Contrary to the father’s contention, the Family Court could rely upon the findings of the Hearing Examiner, without holding a new hearing, in making its determination that the father should be incarcerated for willful violation of the child support order (see, Matter of Mazzilli v Mazzilli, 248 AD2d 474; see, Matter of Louie v Ong, 211 AD2d 495). Furthermore, based upon the evidence of child support arrears in the amount of $7,150, we reject the father’s contention that the $7,000 he was required to pay in order to purge the contempt was unconscionable. Mangano, P. J., Rosenblatt, Ritter and Altman, JJ., concur.