         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
36
CAF 09-02492
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


IN THE MATTER OF SHANNON HUARD,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOSE LUGO, RESPONDENT-APPELLANT.


CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered November 10, 2009 in a proceeding pursuant to
Family Court Act article 4. The order confirmed the Support
Magistrate’s determination that respondent willfully failed to obey an
order of support and sentenced respondent to 90 days in jail.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent father appeals from an order confirming
the determination of the Support Magistrate that he willfully violated
an order of child support and sentencing him to a term of
incarceration of 90 days. The father contends that the Support
Magistrate erred in allowing him to proceed pro se at the fact-finding
hearing. We conclude that the father failed to preserve that
contention for our review.

     We note at the outset that the father did not file any objections
to the Support Magistrate’s order (see generally Family Ct Act § 439
[e]). In Matter of Oswego County Support Collection Unit v Richards
(305 AD2d 1101, lv denied 100 NY2d 637), we determined that, because
the respondent failed to file objections to the Hearing Examiner’s
order finding willfulness and recommending commitment pursuant to
Family Court Act § 439 (former [e]), he “waiv[ed] his right to
appellate review of the finding of a willful violation . . . .”
Section 439 (e), however, was revised in 2004 by providing that a
determination of willful violation of a support order where commitment
is recommended does not constitute a final order (see L 2004, ch 336,
§ 3; Assembly Mem in Support, Bill Jacket, L 2004, ch 336, at 4-5).
“A determination by a support magistrate that a person is in willful
violation of a support order and recommending commitment has no force
and effect until confirmed by a Judge of the Family Court . . . Such a
determination by a support magistrate does not constitute a final
order to which a party may file written objections” (Matter of Dakin v
Dakin, 75 AD3d 639, 639-640, lv dismissed 15 NY3d 905; see § 439 [a],
                                 -2-                            36
                                                         CAF 09-02492

[e]). A party’s “sole remedy” is to appeal from the final order of
Family Court (Dakin, 75 AD3d at 640). Thus, to the extent that Matter
of Oswego County Support Collection Unit v Richards requires a party
to file objections in order to preserve a contention regarding such a
determination, it should no longer be followed.

     We conclude, however, that the father failed to preserve his
contention for our review under the “normal rules of preservation”
because he failed to raise it before Family Court at the confirmation
proceeding, where he was represented by counsel (Matter of Michelle
F.F. v Edward J.F., 50 AD3d 348, 350, lv denied 11 NY3d 708). In any
event, the father’s contention lacks merit.

     We reject the father’s further contention that petitioner mother
failed to present clear and convincing evidence that he willfully
violated the support order. In order to establish a willful violation
of a support order, there must be “proof of both the ability to pay
support and the failure to do so” (Matter of Powers v Powers, 86 NY2d
63, 68). The father is presumed to have sufficient means to support
his child (see Family Ct Act § 437), and his failure to pay support
constitutes “prima facie evidence of a willful violation” (§ 454 [3]
[a]; see Powers, 86 NY2d at 69). “[P]roof that [the father] has
failed to pay support as ordered alone establishes [the mother’s]
direct case of willful violation, shifting to [the father] the burden
of going forward” (Powers, 86 NY2d at 69). The record of the fact-
finding hearing establishes that there was a court order requiring the
father to pay child support, and the father conceded that he did not
pay it. The father testified, however, that he lacked the means to do
so because he did not want to jeopardize his business or “get [into]
any tax problems.” We thus conclude that the father failed to offer
any “competent, credible evidence of his inability to make the
required payments” (id. at 70; see Matter of Seleznov v Pankratova, 57
AD3d 679, 680-681).




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
