         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
161
CAF 09-02619
PRESENT: SMITH, J.P., CARNI, SCONIERS, GREEN, AND GORSKI, JJ.


IN THE MATTER OF CATTARAUGUS COUNTY DEPARTMENT
OF SOCIAL SERVICES, ON BEHALF OF LAURIE MCGIRR,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NICCOLE ROBERTS, RESPONDENT-APPELLANT.


ANDREW J. CORNELL, WELLSVILLE, FOR RESPONDENT-APPELLANT.

STEPHEN D. MILLER, OLEAN, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered November 19, 2009 in a proceeding
pursuant to Family Court Act article 4. The order denied respondent’s
objections and confirmed an order of the Support Magistrate entered
October 6, 2009.

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

     Memorandum: Respondent mother appeals from an order of Family
Court denying her objections to the order of the Support Magistrate
that, inter alia, found that she had willfully violated a prior child
support order and denied her petition seeking modification of that
prior order. Based upon the evidence before the Support Magistrate,
the court properly denied the mother’s objection with respect to the
finding of a willful violation of the prior order. There is a
statutory presumption that the mother had sufficient means to support
her child (see Family Ct Act § 437; Matter of Powers v Powers, 86 NY2d
63, 68-69), and the evidence that the mother failed to pay support as
ordered constitutes “prima facie evidence of a willful violation” (§
454 [3] [a]). The mother failed to meet her burden of rebutting the
presumption “inasmuch as [s]he failed to present evidence establishing
that [s]he made ‘reasonable efforts to obtain gainful employment to
meet [her] . . . support obligations’ ” (Matter of Christine L.M. v
Wlodek K., 45 AD3d 1452, 1452). The record supports the Support
Magistrate’s findings that the mother’s participation in substance
abuse treatment does not render her unable to make the required
support payments (see generally Matter of Hopkins v Gelia, 70 AD3d
1335, 1336), or that such participation constitutes a basis for
modifying the amount of her child support obligation (see generally
Matter of Knights v Knights, 71 NY2d 865, 866-867). Finally, the
mother’s contention that the court erred in failing to cap her unpaid
                                 -2-                           161
                                                         CAF 09-02619

child support arrears at $500 is raised for the first time on appeal
and thus is not preserved for our review (see Matter of Cattaraugus
County Dept. of Social Servs. v Stark, 75 AD3d 1098).




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