         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1431
CAF 12-00771
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


IN THE MATTER OF ANDREA J. BALL,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SCOTT D. MARSHALL, RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


DAVIS LAW OFFICE, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR
RESPONDENT-APPELLANT.


     Appeal from an amended order of the Family Court, Oswego County
(Donald E. Todd, J.), entered April 4, 2012 in a proceeding pursuant
to Family Court Act article 4. The amended order, inter alia,
confirmed the determination of the Support Magistrate that respondent
had willfully violated an order of child support.

     It is hereby ORDERED that the amended order so appealed from is
unanimously modified on the law by vacating Special Conditions 17, 18
and 19 and as modified the amended order is affirmed without costs.

     Memorandum: Respondent father appeals from an amended order of
Family Court confirming the determination of the Support Magistrate
that he willfully violated an order of child support. The Support
Magistrate’s amended order determining that there was a willful
violation was issued after the father failed to appear for the hearing
on the violation petition. The father’s contention that he was denied
his right to a hearing on the violation petition is not properly
before us on this appeal from the amended order of Family Court.
Rather, the proper procedure for challenging the Support Magistrate’s
amended order entered upon the father’s default is by way of a motion
to vacate that amended order pursuant to CPLR 5015 (a) (see Matter of
Chautauqua County Dept. of Social Servs. v Rita M.S., 94 AD3d 1509,
1510), and the father failed to make such a motion (see Matter of
Garland v Garland, 28 AD3d 481, 481-482; Matter of Wideman v Murley,
155 AD2d 841, 842). We note in any event that, on the merits, the
father is statutorily presumed to have sufficient means to support his
child (see Family Ct Act § 437; Matter of Christine L.M. v Wlodek K.,
45 AD3d 1452, 1452), and evidence of the failure to pay support as
ordered constitutes “prima facie evidence of a willful violation” (§
454 [3] [a]; see Matter of Powers v Powers, 86 NY2d 63, 69; Matter of
Jelks v Wright, 96 AD3d 1488, 1489). Once the mother made a prima
facie showing of a willful violation, the burden shifted to the father
to rebut that showing (see Powers, 86 NY2d at 69-70). Having failed
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                                                         CAF 12-00771

to appear at the hearing before the Support Magistrate, the father may
not now argue that he was denied his right to rebut the mother’s prima
facie showing of a willful violation.

     We reject the father’s further contention that he was denied due
process of law because the Support Magistrate failed to advise him of
his rights in the violation proceeding prior to the hearing conducted
in the father’s absence. The father does not dispute that he was
served with a summons and violation petition, nor does he contend that
the petition was deficient in notice. In any event, the summons and
petition are in conformance with the requisite provisions of Family
Court Act § 453 (cf. Matter of Stagnar v Stagnar, 98 AD2d 983, 984;
see generally Matter of Santana v Gonzalez, 90 AD3d 1198, 1199; Matter
of Child Support Enforcement Unit v John M., 283 AD2d 40, 43), and the
record reflects that the father otherwise was afforded his due process
rights in the proceeding.

     Finally, we agree with the father that Special Conditions 17, 18
and 19, the only specific conditions challenged by the father in his
brief, are not reasonably related to the underlying issue of child
support arrears (see generally People v Braun, 177 AD2d 981, 981). We
therefore modify the amended order in appeal No. 2 by vacating those
conditions.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
