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In Re April G v. Duane M

New York Supreme Court Appellate Division, First Department


April 11, 2013

IN RE APRIL G., PETITIONER-RESPONDENT,
v.
DUANE M., RESPONDENT-APPELLANT.

Matter of April G. v Duane M.

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.

Decided on April 11, 2013

Gonzalez, P.J., Friedman, Abdus-Salaam, Roman, Clark, JJ.

Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about May 16, 2012, which affirmed the Support Magistrate's finding of willfulness, and sentenced respondent-appellant father to incarceration for a period not to exceed four months with a purge amount set at $5,000.00, unanimously affirmed, without costs.

Although the father has paid the purge amount and completed his sentence, this appeal "is not academic, in light of the enduring consequences which might flow from the finding that he violated the order of support" (Matter of Saintime v Saint Surin, 40 AD3d 1103, 1104 [2d Dept 2007]).

The father, however, failed to rebut the prima facie evidence of his willful violation of the order of support (see Family Ct Act § 454[3][a]). Indeed, the father failed to present credible evidence that his medical condition renders him unable to provide support for the subject child, or that he is financially unable to pay (compare Matter of Ferrara v Ferrara, 52 AD3d 599, 600 [2d Dept 2008], lv denied 11 NY3d 706 [2008], with Matter of John T. v Olethea P., 64 AD3d 484, 485 [1st Dept 2009]).

To the extent the father argues that the court failed to settle the record on appeal, he has failed to show that evidence exists to remedy the deficiencies in his proof.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 11, 2013

CLERK

20130411

© 1992-2013 VersusLaw Inc.



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