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

1247
CAF 11-01626
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF COMMISSIONER OF CATTARAUGUS
COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF
OF KAREN E. JORDAN, PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ERIC M. JORDAN, RESPONDENT-APPELLANT.


SCHAVON R. MORGAN, MACHIAS, 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 July 18, 2011 in a proceeding pursuant
to Family Court Act article 4. The order denied respondent’s written
objections to an order issued by the Support Magistrate.

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

     Memorandum: Petitioner commenced this proceeding seeking to
recover child support arrears, and respondent father cross-petitioned
for a downward modification of his support obligation. Contrary to
the father’s contention, Family Court properly denied his objections
to the Support Magistrate’s order that, after a hearing, granted the
petition and denied the cross petition.

     With respect to the petition, “[t]here is a presumption that a
[parent] has sufficient means to support his or her . . . minor
children . . . , and the evidence that [the parent] failed to pay
support as ordered constitutes ‘prima facie evidence of a willful
violation’ ” (Matter of Christine L.M. v Wlodek K. [appeal No. 2], 45
AD3d 1452, 1452; see Family Ct Act §§ 437, 454 [3] [a]; Matter of
Powers v Powers, 86 NY2d 63, 68-69), “shifting to [the parent] the
burden of going forward” (Powers, 86 NY2d at 69). To meet that
burden, the father was required to “offer some competent, credible
evidence of his inability to make the required payments” (id. at 69-
70). Where, as here, a parent “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 parent must] offer competent medical evidence
to substantiate that testimony” (Matter of Fogg v Stoll, 26 AD3d 810,
810-811; see Matter of Yamonaco v Fey, 91 AD3d 1322, 1323, lv denied
19 NY3d 803). The father failed to offer such evidence, and further
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                                                         CAF 11-01626

failed to establish that the disability that allegedly prevented him
from working continued to exist at the time of the hearing.
Consequently, the court properly confirmed that part of the Support
Magistrate’s order that granted the petition.

     The court also properly confirmed that part of the Support
Magistrate’s order that denied the father’s cross petition. When a
party seeking to modify a support obligation alleges that “ ‘the
change in circumstances is the loss of employment, a party seeking a
downward modification must make a good-faith effort at seeking
re-employment commensurate with his or her qualifications and
experience’ ” (Matter of Gray v Gray, 52 AD3d 1287, 1288, lv denied 11
NY3d 706). Additionally, when a party loses a job due to injury or
illness, “ ‘the party has the same obligation to find some other type
of employment, unless that party can demonstrate that he or she is
unable to perform other work’ ” (id.). Here, the father failed to
establish either that he made a good faith effort to seek other
employment or that he is unable to perform other work, and he thus
failed to meet his burden on the cross petition.




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
