IN RE: Jehudaia MARTINEZ (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Queens County (Dean Kusakabe, J.), dated February 23, 2024.  The order denied the mother's objections to an order of the same court (Rosa M. Astuto, S.M.) dated January 12, 2024, which, after a hearing, dismissed the mother's petition alleging that the father was in willful violation of a prior order of child support.

ORDERED that the order dated February 23, 2024, is affirmed, without costs or disbursements.

The parties are the parents of two children, born in 2006 and 2008.  In an order dated October 31, 2019 (hereinafter the child support order), the father was directed to pay to the mother basic child support in the sum of $230 per week.  In August 2022, the mother commenced a proceeding alleging that the father was in willful violation of the child support order.  Following a hearing, in an order dated June 8, 2023, the Support Magistrate determined, inter alia, that the father did not willfully violate the child support order and dismissed the petition.  The mother filed objections to the Support Magistrate's order.  In an order dated July 26, 2023, the Family Court remitted the matter to the Support Magistrate to clarify whether any specific, nontuition support payments were to be credited to the father and whether the petition was to be dismissed or granted as a result of those payments.

In an order dated January 12, 2024, the Support Magistrate dismissed the petition, based on, among other things, the mother's lack of credibility in establishing that arrears were owed.  The mother filed objections to the order dated January 12, 2024.  In an order dated February 23, 2024, the Family Court denied the mother's objections.  The mother appeals.

Contrary to the mother's contention, the Family Court properly denied her objections to the order dated January 12, 2024.  “At a hearing pursuant to Family Court Act § 454 to determine whether a respondent has ‘willfully failed to obey [a] lawful order of support,’ the burden is on the petitioner to establish that the respondent willfully violated the terms of the [order] by failing to pay the required support” (Matter of Hanrahand v. Hanrahand, 202 A.D.3d 679, 680, 158 N.Y.S.3d 630, quoting Family Ct Act § 454[3] [internal quotation marks omitted]).  Evidence that the respondent failed to pay child support as ordered constitutes 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;  Matter of Rodriguez v. Starks, 194 A.D.3d 1063, 1065, 149 N.Y.S.3d 474).  “If the petitioner makes this prima facie showing, the burden shifts to the respondent to present competent, credible evidence that his or her failure to pay support in accordance with the terms of the order was not willful” (Matter of Hanrahand v. Hanrahand, 202 A.D.3d at 680, 158 N.Y.S.3d 630).  Great deference should be given to the credibility determinations of the Support Magistrate, who is in the best position to assess the credibility of the witnesses (see Matter of Abizadeh v. Petrushka, 224 A.D.3d 896, 897, 206 N.Y.S.3d 350;  Matter of Santman v. Schonfeldt, 209 A.D.3d 742, 743, 174 N.Y.S.3d 880).

Here, in response to the mother's prima facie showing, the Support Magistrate credited the father's testimony that he had made cash payments to the mother, which she had not acknowledged, and determined that the mother's testimony, including her failure to explain certain cash deposits in her bank account, lacked credibility.  The Support Magistrate's credibility determinations were supported by the record and will not be disturbed (see Matter of Abizadeh v. Petrushka, 224 A.D.3d at 897, 206 N.Y.S.3d 350;  Matter of Santman v. Schonfeldt, 209 A.D.3d at 743, 174 N.Y.S.3d 880;  see generally Matter of Srivastava v. Dutta, 220 A.D.3d 949, 951, 198 N.Y.S.3d 385).  Accordingly, the Family Court properly denied the mother's objections to the order dated January 12, 2024, dismissing the petition (see Family Ct Act § 441;  cf.  Matter of Santman v. Schonfeldt, 209 A.D.3d at 743, 174 N.Y.S.3d 880).

The mother's remaining contentions are unpreserved for appellate review, as she failed to raise them in her objections before the Family Court (see Matter of Rasberry v. Fernandez, 238 A.D.3d 879, 880, ––– N.Y.S.3d ––––;  Matter of Esposito v. Rosa, 172 A.D.3d 858, 858, 97 N.Y.S.3d 876).

IANNACCI, J.P., CHAMBERS, TAYLOR and MCCORMACK, JJ., concur.