SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

300 

CAF 15-01426 

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ. 

 

 

IN THE MATTER OF BRENDA L. BRUMFIELD, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

GEORGE C.E. BRUMFIELD, RESPONDENT-RESPONDENT.

 

SCHELL LAW, P.C., FAIRPORT (GEORGE A. SCHELL, SR., OF COUNSEL), FOR

PETITIONER-APPELLANT.

 

Appeal from an order of the Family Court, Monroe County (Dandrea

L. Ruhlmann, J.), entered November 10, 2014 in a proceeding pursuant

to Family Court Act article 4. The order dismissed the violation

petition. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the petition is

reinstated, and the matter is remitted to Family Court, Monroe County,

for further proceedings in accordance with the following memorandum: 

In February 2010, Family Court entered an order confirming a Support

Magistrate’s determination that respondent father had willfully

violated an order of child support and imposing a sentence of

incarceration that was suspended on the condition that the father make

his required support payments as well as an additional payment of $500

per month toward accumulated arrears. Petitioner mother then

commenced a proceeding in September 2010 alleging that the father had

not complied with the terms of the February 2010 order, and the

Support Magistrate entered a stipulated order in November 2010 that,

inter alia, directed that all outstanding arrears be reduced to

judgment. After additional proceedings not at issue here, the mother

commenced the instant proceeding in November 2013, again alleging that

the father had not complied with the terms of the February 2010 order,

and seeking to have the suspended sentence revoked and the father

incarcerated. Family Court dismissed the petition, concluding that

the Support Magistrate’s November 2010 order stood “in lieu of” the

suspended sentence inasmuch as the Support Magistrate had “entered

judgment for the entire amount of arrears.” The court also concluded,

in the alternative, that the mother had not shown that the father

knowingly violated the February 2010 order in view of “the ongoing

nature of [the] case and the complexity of its own history.” We agree

with the mother that the court erred in summarily dismissing the

petition.

Pursuant to Family Court Act § 451 (1), Family Court has
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CAF 15-01426 

“continuing plenary and supervisory jurisdiction over a support

proceeding until [its directives are] completely satisfied” (Matter of

Damadeo v Keller, 132 AD3d 670, 672), and the suspension of an order

of commitment may be revoked at any time “[f]or good cause shown” 

(§ 455 [1]; see Matter of Bonneau v Bonneau, 97 AD3d 917, 917, lv

denied 19 NY3d 815). Moreover, the entry of a judgment for child

support arrears is a form of relief that stands “ ‘in addition to any

and every other remedy which may be provided under the law,’ ”

including the provisions of Family Court Act § 454 (3) (a) authorizing

a court to commit a respondent to jail for willfully violating a

support order (Damadeo, 132 AD3d at 672, quoting § 460 [3]). We thus

conclude that an order conditioning a suspended sentence on payments

toward accumulated arrears is enforceable even if the arrears are

later reduced to judgment, and that the court’s determination to the

contrary was error (see generally id.). 

The court’s alternative ground for dismissing the petition was

also erroneous. The mother made a prima facie showing that the father

willfully violated the February 2010 order through her submission of a

certified calculation showing that he had not made all of the required

payments (see Matter of Valerie Q. v Arturo H., 48 AD3d 1049, 1049;

see generally Family Ct Act § 454 [3] [a]; Matter of Powers v Powers,

86 NY2d 63, 68-69), and the record fails to establish at this juncture

that the father’s alleged violation of that order was not willful (see

generally Matter of Calvello v Calvello, 20 AD3d 525, 526; Matter of

Delaware County Dept. of Social Servs. v Brooker, 272 AD2d 835, 835-

836). We therefore reverse the order, reinstate the petition, and

remit the matter to Family Court for further proceedings thereon (see

Matter of Coleman v Murphy, 89 AD3d 1500, 1500-1501).

Entered: April 29, 2016 Frances E. Cafarell

Clerk of the Court