FOGG v. STOLL (2006)

 Family Court properly determined that respondent was in willful violation of an order of child support.   The record establishes respondent's failure to pay support pursuant to the order, which “itself constitutes ‘prima facie evidence of a willful violation’ ” (Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154, quoting Family Ct. Act § 454 [3][a] ).   The burden then shifted to respondent to come forward with “some competent, credible evidence of his inability to make the required payments” (id. at 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154).   Although respondent testified that he was unable to meet his support obligation because physical disabilities interfered with his ability to maintain employment, he failed to offer competent medical evidence to substantiate that testimony (see Matter of Nickerson v. Bellinger, 258 A.D.2d 688, 685 N.Y.S.2d 320).   Further, respondent testified that he was in fact employed as a truck driver (see Matter of Cowan v. Lott, 307 A.D.2d 480, 481, 762 N.Y.S.2d 155) and that he failed to report that employment to the Child Support Enforcement Unit (CSEU) (see Matter of Armstrong v. Belrose, 9 A.D.3d 625, 627, 779 N.Y.S.2d 662).   In addition, the record establishes that respondent quit that job, not because of his alleged disabilities but because the CSEU had discovered that he was employed and had garnished his wages.   Under those circumstances, we see no reason to disturb the finding that respondent was in willful violation of the order of child support.   Finally, we note that any issue concerning the propriety of the order dismissing the petition of respondent seeking a downward modification of his child support obligation is not properly before us because no appeal was taken from that order (see Matter of Apostolos v. Fairservice, 23 A.D.3d 720, 721-722, 802 N.Y.S.2d 807).

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

MEMORANDUM: