MONROE COUNTY SUPPORT COLLECTION UNIT WILLS v. WILLS (2005)

 Respondent appeals from an order finding that he willfully violated a prior order of spousal and child support and ordering that he serve six months in jail (see Family Ct. Act § 454[3][a] ), that he pay petitioner's counsel fees (see §§ 438, 454[3] ), and that proceedings be commenced by “the appropriate board, department, authority or office of this state” to suspend his license to practice as a certified public accountant (see § 454[2][f];  § 458-b).  Respondent contends that Family Court erred in conducting the violation hearing in his absence, albeit with the full participation of his counsel, because the court had failed to give him “ ‘Parker ’-type warnings” (see People v. Parker, 57 N.Y.2d 136, 141-142, 454 N.Y.S.2d 967, 440 N.E.2d 1313).   We reject that contention in the context of this civil litigation between private parties (cf. Matter of Elizabeth T., 3 A.D.3d 751, 752-753, 770 N.Y.S.2d 804;  Matter of Luis R., 184 A.D.2d 1012, 584 N.Y.S.2d 352).   In any event, we note that the summons in the proceeding contained the notice required by Family Court Act § 453(b), thereby warning respondent that his failure to appear in court might result in, inter alia, his immediate arrest and further warning him that, if the court found that he willfully failed to comply with the prior order, he might be jailed for contempt of court.   It is further noteworthy that the summons advised respondent that, pursuant to Family Court Act § 433, he might “qualify to testify” at the hearing by telephone or other electronic means if, inter alia, he resided in a county “not contiguous to the Family Court in which the matter will be heard.”   In that connection, we note that respondent later claimed to have been working in New York City at the time of the hearing and unable to appear in Monroe County as a consequence of a snowstorm.   We further conclude that respondent received effective assistance of counsel at the violation hearing (see Matter of Moore v. Blank, 8 A.D.3d 1090, 1091, 778 N.Y.S.2d 370, lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 22, 818 N.E.2d 664;  Matter of Rothfuss v. Thomas, 6 A.D.3d 1145, 775 N.Y.S.2d 657, lv. denied 3 N.Y.3d 603, 782 N.Y.S.2d 697, 816 N.E.2d 570;  Matter of Leslie v. Rodriguez, 303 A.D.2d 1016, 757 N.Y.S.2d 190).

 Contrary to the contention of respondent, the court properly determined that he willfully violated the order of support.   Respondent's failure to pay support as ordered constituted prima facie evidence of a willful violation (see Family Ct. Act § 454[3][a];  Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154).   Moreover, “[a] respondent is prima facie presumed in a hearing under section 454 to have sufficient means to support his or her spouse and [minor] children” (Powers, 86 N.Y.2d at 68-69, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  see § 437).   Upon petitioner's presentation of that prima facie evidence, the burden shifted to respondent to rebut the presumption by offering “some competent, credible evidence of his inability to make the required payments” (Powers, 86 N.Y.2d at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  see Matter of Powers v. Horner, 12 A.D.3d 609, 785 N.Y.S.2d 117;  Matter of Cowan v. Lott, 307 A.D.2d 480, 481, 762 N.Y.S.2d 155;  Matter of Snyder v. Snyder, 277 A.D.2d 734, 716 N.Y.S.2d 154), and respondent failed to rebut the presumption (see Cowan, 307 A.D.2d at 481, 762 N.Y.S.2d 155;  Snyder, 277 A.D.2d 734, 716 N.Y.S.2d 154).

We have considered respondent's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: