IN RE: Cynthia J. MELENDEZ (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Nassau County (Ayesha K. Brantley, J.), dated May 3, 2024, and (2) an order of commitment of the same court, also dated May 3, 2024.  The order, in effect, confirmed so much of an order of disposition of the same court (Tomasina C. Mastroianni, S.M.) dated March 1, 2024, made after a hearing, as found that the father willfully violated a prior order of child support.  The order of commitment, in effect, confirmed the order of disposition and committed the father to the custody of the Nassau County Correctional Facility for a period of 60 days unless he paid the purge amount of $10,000.

ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 60 days unless he paid the purge amount of $10,000 is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Becker v. Guenther, 150 A.D.3d 985);  and it is further,

ORDERED that the order is affirmed, without costs or disbursements;  and it is further,

ORDERED that the order of commitment is affirmed insofar as reviewed, without costs or disbursements.

The parties were never married and are the parents of a child, born in 2012.  In an order of child support dated February 25, 2020, the father was directed to pay to the mother the sum of $221 per week as child support (hereinafter the child support order).  In September 2023, the mother commenced this child support enforcement proceeding, alleging that the father willfully failed to pay as obligated.  In an order of disposition dated March 1, 2024, made after a hearing, the Support Magistrate determined that the father willfully failed to pay as obligated under the child support order and directed the entry of a money judgment in the sum of $27,291.16 for child support arrears.  The Support Magistrate recommended that the father be incarcerated for up to 45 days unless he paid the full arrears amount.  In an order dated May 3, 2024, the Family Court, in effect, confirmed the Support Magistrate's finding of willfulness.  In an order of commitment, also dated May 3, 2024, the court, in effect, confirmed the finding of willfulness and committed the father to the custody of the Nassau County Correctional Facility for a period of 60 days unless he paid the purge amount of $10,000.

Although the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 60 days unless he paid the purge amount must be dismissed as academic, the appeal from so much of the order of commitment as, in effect, confirmed the finding that the father willfully violated the child support order is not academic in light of the enduring consequences that could flow from the determination that he violated his support obligations (see Matter of Leathers v. Smalls, 192 A.D.3d 892, 140 N.Y.S.3d 750;  Matter of Palombelli v. Guglielmo, 187 A.D.3d 1020, 131 N.Y.S.3d 206).

The Family Court, in effect, properly confirmed the Support Magistrate's finding that the father willfully violated the child support order (see Matter of Brady v. White, 185 A.D.3d 921, 125 N.Y.S.3d 875;  Matter of Bea v. Winslow, 162 A.D.3d 763, 79 N.Y.S.3d 79).  The father's failure to pay child support 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, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  Matter of Brady v. White, 185 A.D.3d at 923, 125 N.Y.S.3d 875).  This prima facie showing by the mother shifted the burden of proof to the father to come forward with competent, credible evidence that his failure to pay child support in accordance with the terms of the child support order was not willful (see Matter of Powers v. Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  Matter of Bea v. Winslow, 162 A.D.3d at 764, 79 N.Y.S.3d 79).  The father failed to satisfy this burden inasmuch as he presented no competent or credible evidence of his inability to pay child support (see Matter of Fusco v. Fusco, 134 A.D.3d 1112, 22 N.Y.S.3d 559;  Matter of Pryce v. Greene, 125 A.D.3d 972, 5 N.Y.S.3d 187).

The father's remaining contentions are improperly raised for the first time on appeal (see Joe v. Upper Room Ministries, Inc., 88 A.D.3d 963, 931 N.Y.S.2d 658).

LASALLE, P.J., GENOVESI, TAYLOR and HOM, JJ., concur.