IN RE: Lynda GORSKY (2010)

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Westchester County (Klein, J.), entered June 8, 2009, which upon, in effect, confirming an order of the same court (Furman, S.M.), entered May 27, 2009, made after a hearing, inter alia, finding that he willfully violated a prior order of support and recommending that he be incarcerated for a term of six months, committed him to the Westchester County Jail for a period of 90 days with the opportunity to purge his contempt by paying the sum of $50,000.

ORDERED that the order of commitment entered June 8, 2009, is affirmed, with costs.

 Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support (see Family Ct. Act § 454 [3];  Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154).   Once a prima facie showing has been made, the burden shifts to the party that owes the support to offer some competent, credible evidence of his or her inability to make the required payments (see Family Ct. Act § 454 [3].[a];  Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  Matter of Probert v. Probert, 67 A.D.3d 806, 807, 888 N.Y.S.2d 181;  Matter of Greene–Tyus v. Tyus, 61 A.D.3d 758, 878 N.Y.S.2d 79).   Here, the mother presented testimony establishing the father's arrears and the father admitted the existence of those arrears.   Accordingly, the mother met her prima facie burden (see Matter of Calvello v. Calvello, 20 A.D.3d 525, 526, 800 N.Y.S.2d 429;  Matter of Powers v. Horner, 12 A.D.3d 609, 785 N.Y.S.2d 117;  Matter of Sapp v. Taylor, 298 A.D.2d 590, 591, 749 N.Y.S.2d 539).   In response, the father offered no “competent, credible evidence of his inability to make the required payments” (Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  see Matter of Calvello v. Calvello, 20 A.D.3d at 526, 800 N.Y.S.2d 429).   Accordingly, the Family Court properly determined that the father willfully violated an order of child support.

 Where a willful violation is found, the determination as to what sanction to impose lies within the Family Court's discretion (see Matter of Armstrong v. Belrose, 9 A.D.3d 625, 627, 779 N.Y.S.2d 662;  Matter of Commissioner of Social Servs. v. Rosen, 289 A.D.2d 487, 489, 736 N.Y.S.2d 42).   Here, the Family Court did not improvidently exercise its discretion either in ordering 90 days of incarceration or in setting a purge amount of $50,000 (compare Matter of Cattell v. Cattell, 254 A.D.2d 357, 678 N.Y.S.2d 657;  Matter of Harvey–Cook v. Bicknell, 206 A.D.2d 371, 372–372, 614 N.Y.S.2d 46;  cf. Matter of Probert v. Probert, 67 A.D.3d at 807–808, 888 N.Y.S.2d 181).

The father's remaining contentions are without merit (see Kessler v. Kessler, 47 A.D.3d 892, 894, 896, 850 N.Y.S.2d 596;  Matter of Armstrong v. Belrose, 9 A.D.3d at 627, 779 N.Y.S.2d 662).