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

IN RE: Angeliki GIORDANO, respondent, v. Sebastiano GIORDANO, appellant.

Decided: March 22, 1999

LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ. Steven G. Yudin, New York, N.Y., for appellant.

In a support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Richmond County (Clark, J.), dated June 6, 1997, which denied his objections to an order by the same court (Spinardi, H.E.), dated April 9, 1997, which, after a hearing, inter alia, directed him to pay child support arrears totalling $20,834, and (2) an order of the same court (Clark, J.), dated June 16, 1997, which found him to be in willful violation of a prior order of support dated March 29, 1982, and committed him to the Commissioner of Corrections for confinement for a term of 15 weekends.

ORDERED that the orders are affirmed, without costs or disbursements.

The father's admitted nonpayment of his child support obligation is prima facie evidence of violation of the order of support (see, Family Ct. Act § 454 [3][a] ), and he did not show, by clear and convincing evidence, his inability to comply with the order (see, Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  Matter of Ahrem v. Cattell, 254 A.D.2d 352, 678 N.Y.S.2d 296).   He earned a sufficient amount during the period in question so that the $500 limitation on child support arrears provided by Family Court Act § 413(1)(g) does not apply (cf., Matter of Edwards v. Johnson, 233 A.D.2d 884, 649 N.Y.S.2d 618;  Matter of Nicholson v. Gavin, 207 A.D.2d 402, 615 N.Y.S.2d 458).   The amount of child support arrears from 1992 to the date of the father's modification petition was properly determined and assessed (see, Domestic Relations Law § 244;  Matter of Dox v. Tynon, 90 N.Y.2d 166, 173-174, 659 N.Y.S.2d 231, 681 N.E.2d 398;  Howfield v. Howfield, 250 A.D.2d 573, 671 N.Y.S.2d 988).   The finding that his violation of the support order was willful in the years 1994 to February 1996 was supported by the evidence as found by the Hearing Examiner.

The father's contention of ineffective assistance of counsel is belied by the record.


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