Opinion
Argued February 14, 2000.
April 13, 2000.
In a child support proceeding pursuant to Family Court Act article, the father appeals from an order of the Family Court, Kings County (Hepner, J.), dated April 12, 1999, which, in effect, confirmed a determination of the same court (Gonzalez-Roman, H.E.), dated February 25, 1999, that he had willfully failed to obey an order of the same court, dated December 7, 1995, and thereupon sentenced him to a term of incarceration of 6 months, unless he purged himself of his contempt by paying $6,407 towards child support arrears.
Mark Diamond, New York, N.Y., for appellant.
LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the father's contentions, the Hearing Examiner properly advised him concerning his right to counsel pursuant to Family Court Act § 262 Fam. Ct. Act(a). Further, the father had a sufficient awareness of the relevant circumstances and probable consequences of waiving his right to counsel such that the waiver was intelligent, knowing, and voluntary (cf., Matter of Brainard v. Brainard, 88 A.D.2d 996 ;Matter of Kissel v. Kissel, 59 A.D.2d 1036 ).
The proof before the Hearing Examiner of the father's failure to pay court-ordered support for over one year constituted prima facie evidence of a willful violation of the support order (see, Family Court Act § 454 Fam. Ct. Act[3][a]; Matter of Department of Social Servs. [Children C.] v. Richard C., 250 A.D.2d 766 ). Thus, the burden of going forward shifted to the father to offer competent credible evidence of his inability to comply with the order (see, Matter of Powers v. Powers, 86 N.Y.2d 63, 69 ; Matter of Bickwid v. Deutsch, 229 A.D.2d 533 ).
Although the father claimed that he had no money to pay child support because he was not working, the ability to pay support also includes the ability to find employment (see, Matter of Nieves v. Gordon, 264 A.D.2d 445 ; Matter of Nassau County Dept. of Social Servs. v. Walker, 95 A.D.2d 855). At the hearing, the father admitted that he had not been employed for the previous year and he was not actively seeking any kind of employment. Therefore, the Family Court properly found that the father's failure to seek employment was a willful violation of the support order (see, Matter of Nieves v. Gordon, supra; Matter of Reed v. Reed, 240 A.D.2d 951 ;Davenport v. Guardino, 166 A.D.2d 349 ; Matter of Cox v. Cox, 133 A.D.2d 828 ).
The father's remaining contentions are without merit.