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

126
CAF 10-00359
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


IN THE MATTER OF CARRIE JO YAMONACO,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DENNIS FEY, RESPONDENT-APPELLANT.


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


     Appeal from an order of the Family Court, Livingston County
(Robert B. Wiggins, J.), entered January 20, 2010 in a proceeding
pursuant to Family Court Act article 4. The order, among other
things, adjudged that respondent willfully violated an order to pay
child support and incarcerated respondent for a period of six months.

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

     Memorandum: Respondent father appeals from an order confirming
the Support Magistrate’s determination that he willfully violated a
prior order to pay child support with respect to the parties’ child
and sentencing him to a term of six months in jail. We affirm. It is
well settled that a parent is presumed to be able to support his or
her minor children (see Family Ct Act § 437; Matter of Christine L.M.
v Wlodek K., 45 AD3d 1452). A “failure to pay support as ordered
itself constitutes ‘prima facie evidence of a willful violation’ . . .
[and] establishes [the] petitioner’s direct case of willful violation,
shifting to [the] respondent the burden of going forward” (Matter of
Powers v Powers, 86 NY2d 63, 69). To meet that burden, the respondent
must “offer some competent, credible evidence of his [or her]
inability to make the required payments” (id. at 70-71). In the event
that the respondent “testifie[s] that he [or she] was unable to meet
[the] support obligation because physical [or mental] disabilities
interfered with his [or her] ability to maintain employment, [the
respondent must] offer competent medical evidence to substantiate that
testimony” (Matter of Fogg v Stoll, 26 AD3d 810, 810-811; see Matter
of Greene v Holmes, 31 AD3d 760, 762). Such evidence must establish
that the condition “affected [his or] her ability to work” (Matter of
Lewis v Cross, 72 AD3d 1228, 1230).

     Great deference should be given to the determination of the
Support Magistrate (see Matter of Manocchio v Manocchio, 16 AD3d 1126,
1128). Here, petitioner mother established that the father willfully
violated the prior order by demonstrating that the father had not made
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                                                         CAF 10-00359

the required child support payments. The father failed to meet his
burden to present sufficient evidence of his inability to make such
payments, inasmuch as he failed to offer competent medical evidence to
substantiate that claim.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
