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

934
CA 12-01751
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


CLAUDIA S. JOHNSON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LARRY C. JOHNSON, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


BOUVIER PARTNERSHIP, LLP, EAST AURORA (ROGER T. DAVISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

HOGAN WILLIG, PLLC, AMHERST (ASHLEA L. PALLADINO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered February 24, 2012. The order, among other
things, distributed the parties’ personal property.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by remitting the matter to Supreme
Court, Erie County, for further proceedings with respect to the
disposition of the real property located in Idaho and as modified the
order is affirmed without costs in accordance with the following
Memorandum: In appeal No. 1, defendant appeals from an order that,
inter alia, found defendant in contempt of court on the ground that he
willfully failed to pay child support pursuant to the judgment of
divorce and awarded attorney’s fees to plaintiff. In appeal No. 2,
defendant appeals from an order that, inter alia, distributed the
parties’ personal property.

     In appeal No. 1, we conclude that Supreme Court properly
determined that defendant willfully failed to pay child support
pursuant to the judgment of divorce. Defendant’s admission at the
hearing that he had not paid child support as required by the judgment
of divorce constituted prima facie evidence of a willful violation of
that judgment, and thus the burden shifted to defendant to present
some competent and credible evidence justifying his failure to pay
child support (see Matter of Powers v Powers, 86 NY2d 63, 68-70;
Matter of Lomanto v Schneider, 78 AD3d 1536, 1537). Contrary to
defendant’s contention, his failure to make child support payments to
plaintiff is not excused by an Idaho statute requiring that child
support payments be made directly to the Idaho Department of Health
and Welfare (see Idaho Code § 32-710A [A]). The Idaho statute is not
applicable to this case because the judgment of divorce was issued in
New York and, under the Uniform Interstate Family Support Act, “[t]he
                                 -2-                           934
                                                         CA 12-01751

law of the issuing state governs the nature, extent, amount, and
duration of current payments and other obligations of support and the
payment of arrearages under the order” (Family Ct Act § 580-604 [a];
see Idaho Code § 7-1046 [1] [a]).

     We further conclude that the court properly awarded attorney’s
fees to plaintiff. “In any action or proceeding for failure to obey
any lawful order compelling payment of support or maintenance, or
distributive award[,] the court shall, upon a finding that such
failure was willful, order respondent to pay counsel fees to” the
other party’s attorney (Domestic Relations Law § 237 [c]). Here,
inasmuch as the court properly determined that defendant willfully
failed to pay child support pursuant to the judgment of divorce, it
therefore “properly awarded [plaintiff] an attorney’s fee [for legal
expenses she] incurred in enforcing those obligations” (McDermott v
McDermott, 54 AD3d 911, 912; see § 237 [c]; Simons v Simons, 139 AD2d
959, 961; cf. Boardman v Boardman, 300 AD2d 1110, 1111).

     In appeal No. 2, we agree with defendant that the court erred in
failing to determine the disposition of real property located in
Idaho. In a prior appeal, we modified the judgment of divorce by
“remitting the matter to Supreme Court to determine the disposition of
the [real and personal] property in Idaho” (Johnson v Johnson, 68 AD3d
1685, 1686). On remittal, the court distributed the personal property
located in Idaho but failed to distribute the real property. Thus, we
modify the order in appeal No. 2 by remitting the matter to Supreme
Court to determine the disposition of the real property located in
Idaho (see id.). Finally, we reject defendant’s contention that the
court erred in distributing the parties’ personal property (see
Marcera v Marcera, 87 AD3d 1276, 1277).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
