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

1256
CAF 13-01035
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF KIMBERLY E. REINHARDT,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIE T. HARDISON, RESPONDENT-APPELLANT.


ROBERT J. GALLAMORE, OSWEGO, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Jefferson County
(Richard V. Hunt, J.), entered May 24, 2013 in a proceeding pursuant
to Family Court Act article 4. The order sentenced respondent to 60
days in the Jefferson County Jail for failure to pay child support.

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

     Memorandum: Respondent father appeals from an order confirming
the determination of the Support Magistrate that he willfully violated
an order of child support and sentencing him to a term of
incarceration of 60 days. We reject the father’s contention that
petitioner mother failed to meet her burden of presenting prima facie
evidence of his willful violation. “[P]roof that [the father] has
failed to pay support as ordered alone establishes [the mother’s]
direct case of willful violation, shifting to [the father] the burden
of going forward” (Matter of Powers v Powers, 86 NY2d 63, 69).
Contrary to the father’s further contention, he failed to meet his
burden inasmuch as he failed to present competent medical evidence to
support his testimony that mental health problems interfered with his
ability to obtain gainful employment to meet his child support
obligation (see Matter of Yamonaco v Fey, 91 AD3d 1322, 1323, lv
denied 19 NY3d 803), nor did he establish that he made reasonable
efforts to obtain such employment (see Matter of Christine L.M. v
Wlodek K., 45 AD3d 1452, 1452-1453).

     The father failed to preserve for our review his contention that
the Support Magistrate improperly assisted the mother with her
testimony and was biased against him (see Matter of Gina C. v Augusto
C., 116 AD3d 478, 479, lv denied 23 NY3d 905; Matter of Sheenagh O’R.
v Sean F., 50 AD3d 480, 482-483). Finally, we reject the father’s
contention that he was denied effective assistance of counsel inasmuch
as he did not “ ‘demonstrate the absence of strategic or other
legitimate explanations’ for counsel’s alleged shortcomings” (People v
Benevento, 91 NY2d 708, 712; see Matter of Elijah D. [Allison D.], 74
                               -2-                 1256
                                              CAF 13-01035

AD3d 1846, 1847).




Entered:   November 21, 2014         Frances E. Cafarell
                                     Clerk of the Court
