IN RE: Joan BAVARO-BALDWIN (2006)

In a support proceeding pursuant to Family Court Act article 4, the appeal is from (1) an order of the Family Court, Richmond County (Porzio, J.), dated December 20, 2004, which confirmed a determination of the same court (Castaldi, S.M.) dated November 1, 2004, finding, after a hearing, that the respondent father had willfully failed to pay child support, confirmed the arrears in the sum of $32,054.60, and directed, inter alia, that he make payments toward support arrears in the sums of $8,000 by June 20, 2006, and $8,054.60 by December 20, 2006, and (2) an order of commitment of the same court also dated December 20, 2004, which committed him to the custody of the New York City Department of Corrections for consecutive weekends from January 3, 2005, through May 1, 2005.

ORDERED that the appeal from the order of commitment is dismissed as academic, without costs or disbursements, as the period of incarceration has expired;  and it is further,

ORDERED that the order is modified, on the law and as a matter of discretion, by deleting the provisions thereof directing the appellant to make payments toward support arrears in the sums of $8,000 by June 20, 2006, and $8,054.60 by December 20, 2006, and substituting therefor a provision directing the appellant to make semi-annual payments in the sum of $2,000 commencing June 20, 2006, until the remainder of the arrears of $32,054.60 is paid;  as so modified, the order is affirmed, without costs or disbursements.

 The appellant father's failure to pay child support constituted prima facie evidence of a willful violation of the order of support (see Family Ct. Act § 454[3][a];  Matter of Watson v. Watson, 21 A.D.3d 497, 799 N.Y.S.2d 809).   The burden then shifted to the father to offer competent, credible evidence of his inability to comply with that order (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 Sapp v. Taylor, 298 A.D.2d 590, 592, 749 N.Y.S.2d 539).   Since the father failed to sustain his burden to rebut the prima facie evidence of willfulness by introducing sufficient proof of his inability to pay, the Family Court properly found that he had willfully violated the support order (see Matter of DeCamp v. DeCamp, 8 A.D.3d 274, 777 N.Y.S.2d 689;  Matter of Statfeld v. Statfeld, 296 A.D.2d 415, 416, 744 N.Y.S.2d 490;  Matter of Richards v. Bailey, 296 A.D.2d 412, 413, 744 N.Y.S.2d 493;  Matter of Wright v. Lyons, 288 A.D.2d 481, 482, 734 N.Y.S.2d 106).   However, the Family Court improvidently exercised its discretion in setting the schedule for payment of the support arrears to the extent indicated.

As correctly conceded by the father, the appeal from the order of commitment must be dismissed as academic because the term of commitment has expired (see Gayle v. Counts, 302 A.D.2d 521, 755 N.Y.S.2d 290;  Matter of Zapata v. Middleton, 197 A.D.2d 526, 604 N.Y.S.2d 741;  Matter of Madison County Support Collection Unit [Bordell] v. Drennan, 156 A.D.2d 883, 549 N.Y.S.2d 869).