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Maldonado v. Maldonado

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


June 8, 2010

IN THE MATTER OF MAURICIO MALDONADO, APPELLANT,
v.
MARIA MALDONADO, RESPONDENT.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Malone, J.), entered March 10, 2009, which, upon an order of the same court (Hochberg, S.M.), entered October 3, 2008, made after a hearing, finding that he willfully violated a prior order of support and recommending that he be incarcerated for a period of three months, inter alia, confirmed the finding of willfulness and ordered his incarceration for a period of three months with the opportunity to purge the contempt by payment of the sum of $8,000 toward his arrears.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, L. PRISCILLA HALL and SANDRA L. SGROI, JJ.

(Docket No. F-14997-07)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The mother's proof that the father failed to pay child support as ordered constituted prima facie evidence of the father's willful violation of the support order (see Family Ct Act § 454[3][a]; Matter of Powers v Powers, 86 NY2d 63, 69; Matter of Ferrara v Ferrara, 52 AD3d 599, 600). The burden then shifted to the father to come forward with competent, credible evidence of his inability to pay, and he failed to meet his burden (see Matter of Rube v Tornheim, 67 AD3d 916; Matter of Probert v Probert, 67 AD3d 806, 807-808; Matter of Fraser v Green, 57 AD3d 896). Accordingly, the Family Court properly determined that he willfully violated the support order (see Matter of Corry v Corry, 59 AD3d 618, 619).

The father's remaining contentions are without merit, do not require reversal, or are not properly before this Court.

FISHER, J.P., COVELLO, HALL and SGROI, JJ., concur.

20100608

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