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

895
CAF 13-00930
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF VALERIE L. PITKA,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STEWART PITKA, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR RESPONDENT-APPELLANT.

ELIZABETH A. SAMMONS, WILLIAMSON, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Wayne County (Dennis M.
Kehoe, J.), entered July 17, 2012 in a proceeding pursuant to Family
Court Act article 4. The order denied the objections of respondent to
the order of the Support Magistrate.

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

     Memorandum: In appeal No. 1, respondent father contends that
Family Court erred in denying his objections to the order of the
Support Magistrate, which directed him to pay for his daughter’s
support as if the parties did not have another child for whom the
father already paid 17% of his income in support. In appeal No. 2,
the father appeals from an order that modified a prior order to
require payment of a sum certain for daycare expenses instead of a
percentage of the total daycare costs, and determined that he owed
child support arrears in the amount of $10,236.33 and was in willful
violation of the support order.

     At the outset, we reject the father’s contention with respect to
both appeals that the court lacked jurisdiction over the paternity and
support proceedings commenced by petitioner mother because the Support
Magistrate previously dismissed the paternity petition. Family Court
may exercise jurisdiction over a nonresident where that person submits
to the jurisdiction of New York “by consent, by entering a general
appearance, or by filing a responsive document having the effect of
waiving any contest to personal jurisdiction” (Family Ct Act § 580-201
[2]). Here, in response to the mother’s paternity petition, the
father appeared before the court on September 6, 2011, and admitted
that he was the subject child’s father. The father’s voluntary
appearance through the course of this litigation clearly indicated
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                                                         CAF 13-00930

that he consented to New York’s personal jurisdiction over him (see
Matter of Spak v Specht, 216 AD2d 705, 707). Upon making a finding of
paternity, the Support Magistrate then converted the mother’s
paternity petition to a petition for an order of support (see § 545).

     We also reject the father’s contention in appeal No. 1 that the
Support Magistrate erred in failing to calculate his child support
obligation based on 25% of his income. Here, the support dispute
before the court concerned only one of the children. A court in the
State of Virginia had previously granted the parties a divorce and,
inter alia, directed the father to pay child support for the parties’
other child. Later, when the father moved to the State of Alaska, the
mother commenced this proceeding concerning the subject child, who was
born after the divorce was finalized. Inasmuch as the Support
Magistrate in this proceeding had no jurisdiction over the support
issue decided by the Virginia court concerning the parties’ other
child, she properly used the presumptive percentage of 17% in
calculating the father’s child support obligation for the subject
child (see Family Ct Act § 413 [1] [b] [3]) and, before determining
his annual adjusted gross income, the Support Magistrate properly
deducted the amount that the father was paying for the other child’s
support (see § 413 [1] [b] [5] [vii] [D]). Furthermore, the Support
Magistrate properly complied with Family Court Act § 413 (1) (f) (10)
and (1) (g) in finding that it would be unjust to order the father to
pay $644.31 in support and in further reducing that amount based on
the fact that the father was already paying support for another child.

     The father contends in appeal No. 2 that the Family Court Act
requires payments for daycare expenses as a percentage, and the
Support Magistrate therefore erred in requiring him to pay a sum
certain for such expenses. We reject that contention (see § 413 [c]
[6]), and conclude that the Support Magistrate properly ordered the
father to pay $155 for child care services through the support
collection unit.

     Contrary to the father’s further contention in appeal No. 2,
there was competent evidence presented at the hearing that he owed
arrears in the amount of $10,236.33. We likewise reject the father’s
contention in appeal No. 2 that the Support Magistrate erred in
determining that he was in willful violation of the support order.
Evidence of a parent’s failure to pay child support as ordered
constitutes prima facie evidence of a willful violation (see Family Ct
Act § 454 [3] [a]) and, “ ‘[o]nce a prima facie showing has been made,
the burden shifts to the party that owes the support to offer some
competent, credible evidence of his or her inability to make the
required payments’ ” (Matter of Rottman v Coull, 112 AD3d 837, 839).
The record establishes that, despite being asked to provide the
Support Magistrate with full financial documentation, the father
failed to do so. Similarly, there is no evidence in the record before
this Court to support the father’s contention that he was paying
approximately 65% of his income in child support and could not afford
to make the payments. The father failed to satisfy his burden of
demonstrating that his failure to pay was not willful (see Matter of
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      CAF 13-00930
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Huard v Lugo, 81 AD3d 1265, 1267, lv denied 16 NY3d 710).




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
