IN RE: Belinda WATSON (2005)

In a spousal support proceeding pursuant to Family Court Act article 4, the husband appeals from (1) an order of the Family Court, Kings County (O'Donoghue, J.), dated June 21, 2004, which, after a hearing, confirmed the findings of the same court (Levy, S.M.), also made after a hearing, that he willfully violated an order of support of the same court (Levy, H.E.), dated December 21, 2001, inter alia, directed him to be incarcerated for a period of six months, and directed the entry of a judgment for arrears from March 7, 2003, to June 2, 2004, in the sum of $9,750, and (2) a judgment of the same court dated June 21, 2004, which, inter alia, is in favor of the wife and against him in the sum of $9,750.

ORDERED that the appeal from so much of the order as directed the entry of judgment in the sum of $9,750 is dismissed, without costs or disbursements, as that portion of the order was superseded by the judgment;  and it is further,

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

ORDERED that the judgment is affirmed, without costs or disbursements.

 The husband's failure to pay support constituted prima facie evidence of a willful violation of the order of support (see Family Ct. Act § 454[3] [a];  Matter of Zullo v. Hom, 10 A.D.3d 614, 616, 781 N.Y.S.2d 677).   The burden then shifted to the husband 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 husband failed to sustain his burden to rebut the prima facie evidence of willfulness by showing 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;  Matter of Dorner v. McCarroll, 271 A.D.2d 530, 531, 705 N.Y.S.2d 408;  Matter of Nieves v. Gordon, 264 A.D.2d 445, 445-446, 695 N.Y.S.2d 110).

The husband's remaining contention is without merit.