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In re Bianco

Supreme Court of New York, Second Department

June 19, 2013

In the Matter of Marissa Bianco, respondent,
v.
Duncan Bruce-Ross, appellant. Docket No. F-16549-09

Marina M. Martielli, East Quogue, N.Y., for appellant.

Castrovinci & Mady, Smithtown, N.Y. (Kathleen M. Egan of counsel), for respondent.

RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL PLUMMER E. LOTT SANDRA L. SGROI, JJ.

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the father appeals (1), as limited by his brief, from stated portions of an order of commitment of the Family Court, Suffolk County (Freundlich, J.), dated March 12, 2012, which, inter alia, in effect, confirmed an order of the same court (Joseph-Cherry, S.M.), also dated March 12, 2012, made after a hearing, finding that he willfully violated a prior order of support, and (2) from an order of the same court (Hoffmann, J.), dated April 20, 2012, which denied his objections to an order of the same court (Joseph-Cherry, S.M.) dated February 22, 2012, denying his motion for leave to renew his prior motion pursuant to CPLR 5015 to vacate the prior order of support.

ORDERED that the order of commitment is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated April 20, 2012, is affirmed, without costs or disbursements.

Proof of failure to pay child support as ordered constitutes prima facie evidence of a willful violation of an order of support (see Family Ct Act § 454[3]; Matter of Logue v Abell, 97 A.D.3d 582, 583). Once a prima facie showing has been made, the burden shifts to the party that owes the support to offer some competent, credible evidence of his or her inability to make the required payments (see Family Ct Act § 454[3][a]; Matter of Powers v Powers, 86 N.Y.2d 63, 69). Here, the mother presented testimony establishing the father's arrears, and the father admitted the existence of those arrears. Thus, the mother met her prima facie burden (see Matter of Gorsky v Kessler, 79 A.D.3d 746). In response, the father offered no "competent, credible evidence of his inability to make the required payments" (Matter of Powers v Powers, 86 N.Y.2d at 70; see Matter of Kaplan v Kaplan, 102 A.D.3d 873; Matter of Seleznov v Pankratova, 57 A.D.3d 679, 681). Therefore, the Family Court properly determined that the father willfully violated an order of child support.

Contrary to the father's contention, he was afforded his right to due process in this proceeding (see generally Matter of Ball v Marshall, 103 A.D.3d 1270, 1271-1272; Matter of Cox v Cox, 133 A.D.2d 828), and there is no evidence in the record that the Support Magistrate was prejudiced or biased against him (see Matter of Suyunov v Tarashchansky, 98 A.D.3d 744, 745; Matter of Feng Lucy Luo v Yang, 89 A.D.3d 946, 947).

The Family Court properly denied the father's objections to the Support Magistrate's denial of his motion for leave to renew his prior motion pursuant to CPLR 5015 to vacate the order of support, as the father failed to provide any new information that was not available to him at the time of the prior application (see CPLR 2221[e][2]).

The father's claim that he was deprived of the effective assistance of counsel is without merit. Viewed in totality, the record reveals that he received meaningful representation (see Matter of Phillips v Giddings, 96 A.D.3d 950, 951-952; Matter of Rodriguez v Suarez, 93 A.D.3d 730; Matter of Jarrett v Mosslih, 34 A.D.3d 808, 809).

BALKIN, J.P., LEVENTHAL, LOTT and SGROI, JJ., concur.


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