Opinion
2012-11-28
In the Matter of Donna Michelle RUBIN, respondent, v. Brian FLEISSIG, appellant.
Steven P. Forbes, Jamaica, N.Y., for appellant. Cheryl S. Solomon, Brooklyn, N.Y., for respondent.
Steven P. Forbes, Jamaica, N.Y., for appellant. Cheryl S. Solomon, Brooklyn, N.Y., for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an amended order of commitment of the Family Court, Kings County (Katz, J.), dated September 1, 2011, which, upon, in effect, confirming an order of the same court (Fasone, S.M.) dated February 16, 2011, made after a hearing, determining that he willfully violated a prior order of support, committed him to the custody of the New York City Department of Corrections for a term of imprisonment of six months, commencing September 1, 2011.
ORDERED that the appeal from so much of the amended order of commitment as committed the father to the custody of the New York City Department of Corrections for a term of imprisonment of six months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired ( see Matter of Rodriguez v. Suarez, 93 A.D.3d 730, 939 N.Y.S.2d 870); and it is further,
ORDERED that the amended order of commitment is affirmed insofar as reviewed, without costs or disbursements.
Contrary to the father's contention, the Family Court properly determined that he willfully violated a prior order of support. The mother's testimony and the father's admission that he did not fully comply with the order of support constituted prima facie evidence of a willful violation ( see Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;Matter of Calvello v. Calvello, 20 A.D.3d 525, 526, 800 N.Y.S.2d 429;Matter of Powers v. Horner, 12 A.D.3d 609, 785 N.Y.S.2d 117). The father failed to rebut this prima facie evidence of willfulness by offering competent, credible evidence of his inability to pay ( see Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;Matter of Greene–Tyus v. Tyus, 61 A.D.3d 758, 878 N.Y.S.2d 79).