        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

55
CAF 14-02118
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


IN THE MATTER OF MARK A. MANDILE,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KATRINA V. DESHOTEL, RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR RESPONDENT-APPELLANT.

MAUREEN A. PINEAU, ROCHESTER, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Monroe County (Joseph
G. Nesser, J.), entered October 29, 2014 in a proceeding pursuant to
Family Court Act article 4. The order, among other things, confirmed
the Support Magistrate’s determination that respondent willfully
violated a court order and awarded petitioner a judgment in the sum of
$4,129.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by reinstating respondent’s objections
to the Support Magistrate’s denial of her cross petition, and as
modified the order is affirmed without costs, and the matter is
remitted to Family Court, Monroe County, for further proceedings in
accordance with the following memorandum: Respondent mother appeals
from an order adjudging that she willfully violated a prior order of
child support and denying her cross petition for downward modification
of her child support obligation. Contrary to respondent’s contention,
Family Court properly confirmed the finding of the Support Magistrate
that she willfully violated the child support order. “There is a
presumption that a respondent has sufficient means to support his or
her . . . minor children . . . , and the evidence that respondent
failed to pay support as ordered constitutes ‘prima facie evidence of
a willful violation’ ” (Matter of Christine L.M. v Wlodek K., 45 AD3d
1452, 1452, quoting Family Ct Act § 454 [3] [a]; see Matter of
Barksdale v Gore, 101 AD3d 1742, 1742). Here, it was undisputed that
respondent failed to pay the amounts directed by the order, and the
burden thus shifted to her to submit “some competent, credible
evidence of [her] inability to make the required payments” (Matter of
Powers v Powers, 86 NY2d 63, 70; see Matter of Jelks v Wright, 96 AD3d
1488, 1489). Respondent failed to meet that burden. Although
respondent presented evidence of a medical condition disabling her
from work, that evidence relates only to the period after the
violation petition was filed, not to the two-month period in which
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                                                         CAF 14-02118

respondent failed to comply with the support order before the   petition
was filed. Respondent thus “failed to demonstrate that [she]    had made
reasonable efforts to obtain gainful employment to meet [her]   child
support obligation” (Matter of Seleznov v Pankratova, 57 AD3d   679,
681).

     We agree with respondent, however, that the court erred in
failing to consider her objections to the Support Magistrate’s denial
of her cross petition for a downward modification of child support.
Upon receiving those objections and any rebuttal, the court was
required to “(i) [remit] one or more issues of fact to the support
magistrate, (ii) make, with or without a new hearing, his or her own
findings of fact and order, or (iii) deny the objections” (Family Ct
Act § 439 [e]). Instead of reviewing the mother’s objections,
however, the court implicitly dismissed them when it stated on the
record that, if the cross petition was denied by the Support
Magistrate, the mother “will have to file another one.” We therefore
modify the order by reinstating the mother’s objections, and we remit
the matter to Family Court to review respondent’s objections to the
Support Magistrate’s denial of her cross petition in accordance with
Family Court Act § 439 (e).

     We have reviewed respondent’s remaining contentions and conclude
that they lack merit.




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
