State of New York Supreme Court, Appellate Division Third Judicial Department
December 6, 2012
IN THE MATTER OF ST. LAWRENCE COUNTY SUPPORT COLLECTION UNIT, ON BEHALF OF LISA M. STREETMAN,
SCOTT J. LANEUVILLE, APPELLANT.
Appeal from an order of the Family Court of St. Lawrence County (Morris, J.), entered February 23, 2012, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior child support order.
The opinion of the court was delivered by: McCarthy, J.
MEMORANDUM AND ORDER
Calendar Date: November 19, 2012
Before: Peters, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.
Pursuant to a January 2008 order, respondent was required to pay over $26,000 in child support arrears in monthly payments of $100, with the monthly amount increasing to $160 in August 2008. In August 2011, petitioner commenced this proceeding on behalf of the child's mother, alleging that respondent had not made any payments since June 2009. A Support Magistrate found respondent to be in willful violation of the prior order, and Family Court confirmed that finding, sentencing respondent to a 60-day jail term, suspended on the condition that he pay at least $130 monthly toward the arrears. Respondent now appeals.
We affirm. The uncontroverted testimony of a child support investigator employed by petitioner established that respondent had not complied with the prior support order, shifting the burden to respondent to offer "competent, credible evidence of his inability to make the required payments" (Matter of Powers v Powers, 86 NY2d 63, 70 ; see Matter of Christiani v Rhody, 90 AD3d 1090, 1091-1092 , lv denied 18 NY3d 809 ). To that end, respondent testified that he has not been employed nor sought employment since 2006 due to medical issues that prohibit him from working. In support, he presented various medical records from 2011 and the testimony of his treating physician. Although the physician testified that respondent is unable to work due to neck discomfort and an inability to perform repetitive motions without fatiguing, she admitted that her opinion was based on respondent's subjective complaints, with no evidence of objective testing (see Matter of Straight v Skinner, 33 AD3d 1175, 1176 ). Further, there is no indication in the medical records submitted by respondent that he is unable to work. Accordingly, we find that respondent failed to meet his burden of demonstrating an inability to make his required support payments and, therefore, the finding of a willful violation was warranted (see id.; Matter of Columbia County Support Collection Unit v Demers, 29 AD3d 1092, 1093 , lv denied 7 NY3d 708 ).
Peters, P.J., Spain, Kavanagh and Egan Jr., JJ., concur.
ORDERED that the order is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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