IN RE: Laurie MODICA

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Laurie MODICA, respondent, v. Robert THOMPSON, appellant.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON and WILLIAM D. FRIEDMANN, JJ. Gary E. Eisenberg, Monroe, N.Y., for appellant. Patricia Zugibe, County Attorney, New City, N.Y. (Edward Lussen of counsel), for respondent.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from so much of an order of the Family Court, Rockland County (Garvey, J.), entered December 1, 1997, as denied his objections to an order of the same court (Miklitsch, H.E.), dated December 1, 1996, which found him to be in willful violation of an order of support dated March 9, 1995, and recommended that he be incarcerated for six months unless the full arrears are paid by the time of sentencing.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 The proof before the Hearing Examiner of the father's failure to pay court-ordered child support constituted prima facie evidence of a willful violation of the support order (see, Family Ct. Act § 454[3] [a] ).   The burden of going forward then shifted to the father to offer competent, credible evidence of his 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).   While the father's testimony at the hearing indicated that he was unemployed for long periods of time during 1995 and 1996, it also showed that he had income of approximately $52,000 in 1995.   The father testified that he paid off several personal debts, purchased items for the child, and “took care of [him]self”.   He also took a $3,000 loan from an annuity fund to repair his vehicle, while at the same time failing to pay his child support.   There was no proof as to the necessity for placing certain debts ahead of his support obligation.   The proof presented by the father failed to establish his inability to pay and, therefore, to rebut the mother's prima facie evidence of his willful violation of a support order (see, Matter of Powers v. Powers, supra;  Matter of Ahrem v. Cattell, 254 A.D.2d 352, 678 N.Y.S.2d 296;  Matter of Department of Social Services v. Richard C., 250 A.D.2d 766, 674 N.Y.S.2d 53).

MEMORANDUM BY THE COURT.

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