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IN RE: MARIA T., Petitioner-Respondent, v. KWAME A., Respondent-Appellant.
Order, Family Court, New York County (Susan Larabee, J.), entered on or about April 16, 2004, which adopted findings of the Support Magistrate, dated March 31, 2004, and, inter alia, found respondent in willful violation of an order of support, unanimously affirmed, without costs.
Respondent's admitted failure to pay support as ordered constituted prima facie evidence of a willful violation, and shifted to him the burden of going forward (Matter of Powers v. Powers, 86 N.Y.2d 63, 68-69, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ). There is no basis for disturbing the Support Magistrate's findings, based largely on his assessments of witness credibility (see Childress v. Samuel, 27 A.D.3d 295, 296, 811 N.Y.S.2d 372 [2006] ), that respondent failed to show that he had made reasonable efforts to obtain gainful employment (see Spector v. Spector, 18 A.D.3d 380, 382, 797 N.Y.S.2d 437 [2005]; Dorner v. McCarroll, 271 A.D.2d 530, 705 N.Y.S.2d 408 [2000] ) or to demonstrate through admissible evidence (see Family Court Act § 439[d]; Matter of Commr. of Social Servs. v. Albertson, 233 A.D.2d 441, 650 N.Y.S.2d 596 [1996] ) other than his own testimony that a medical condition prevented him from working full time. We note that, even if he went abroad to care for a sick parent, his choice to forgo employment to do so constituted a willful violation (see Griffin v. Griffin, 294 A.D.2d 188, 741 N.Y.S.2d 689 [2002] ).
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Decided: December 12, 2006
Court: Supreme Court, Appellate Division, First Department, New York.
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