Supreme Court, Appellate Division, Second Department, New York.
IN RE: ZHUO HONG ZHENG, Respondent, v. HSIN CHENG, Appellant.
Decided: January 16, 2019
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.
Michael D. Carlin, Brooklyn, NY, for appellant. Patrick R. Garcia, Brooklyn, NY, for respondent.
DECISION & ORDER
ORDERED that the order dated October 11, 2017, is affirmed, without costs or disbursements.
The mother commenced this proceeding pursuant to Family Court Act article 4 seeking child support from the father for the parties' child. In an order dated June 26, 2013, the father was directed to pay child support in the sum of $426.70 per month. The mother alleged that the father was in violation of that order and, in an order dated July 12, 2017, the Support Magistrate, after a hearing, found that he willfully violated the order of child support dated June 26, 2013. The father filed objections to the Support Magistrate's order dated July 12, 2017, and, in an order dated October 11, 2017, the Family Court, in effect, confirmed the Support Magistrate's finding that he willfully violated the order of child support.
Proof that a parent has failed to pay child support as ordered constitutes prima facie evidence of a willful violation, shifting the burden of going forward to the party that owes the support to offer competent, credible evidence of an inability to comply with the 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). Here, it was undisputed that the father failed to comply with the order of child support dated June 26, 2013, and there is no basis to disturb the Support Magistrate's determination that the father failed to credibly establish his inability to pay the support as ordered (see Matter of Espinal–Melendez v. Vasquez, 160 A.D.3d 852, 854, 74 N.Y.S.3d 82; Matter of Stradford v. Blake, 141 A.D.3d 725, 726, 35 N.Y.S.3d 467).
The father's remaining contentions are without merit.
Accordingly, we agree with the Family Court's determination, in effect, to confirm the Support Magistrate's order dated July 12, 2017.
RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.
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