SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

934 

CA 12-01751 

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.

 

 

CLAUDIA S. JOHNSON, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

LARRY C. JOHNSON, DEFENDANT-APPELLANT. 

(APPEAL NO. 2.) 

 

BOUVIER PARTNERSHIP, LLP, EAST AURORA (ROGER T. DAVISON OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

HOGAN WILLIG, PLLC, AMHERST (ASHLEA L. PALLADINO OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (John F.

O’Donnell, J.), entered February 24, 2012. The order, among other

things, distributed the parties’ personal property. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by remitting the matter to Supreme

Court, Erie County, for further proceedings with respect to the

disposition of the real property located in Idaho and as modified the

order is affirmed without costs in accordance with the following

Memorandum: In appeal No. 1, defendant appeals from an order that,

inter alia, found defendant in contempt of court on the ground that he

willfully failed to pay child support pursuant to the judgment of

divorce and awarded attorney’s fees to plaintiff. In appeal No. 2,

defendant appeals from an order that, inter alia, distributed the

parties’ personal property.

In appeal No. 1, we conclude that Supreme Court properly

determined that defendant willfully failed to pay child support

pursuant to the judgment of divorce. Defendant’s admission at the

hearing that he had not paid child support as required by the judgment

of divorce constituted prima facie evidence of a willful violation of

that judgment, and thus the burden shifted to defendant to present

some competent and credible evidence justifying his failure to pay

child support (see Matter of Powers v Powers, 86 NY2d 63, 68-70;

Matter of Lomanto v Schneider, 78 AD3d 1536, 1537). Contrary to

defendant’s contention, his failure to make child support payments to

plaintiff is not excused by an Idaho statute requiring that child

support payments be made directly to the Idaho Department of Health

and Welfare (see Idaho Code § 32-710A [A]). The Idaho statute is not

applicable to this case because the judgment of divorce was issued in

New York and, under the Uniform Interstate Family Support Act, “[t]he
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CA 12-01751 

law of the issuing state governs the nature, extent, amount, and

duration of current payments and other obligations of support and the

payment of arrearages under the order” (Family Ct Act § 580-604 [a];

see Idaho Code § 7-1046 [1] [a]).

We further conclude that the court properly awarded attorney’s

fees to plaintiff. “In any action or proceeding for failure to obey

any lawful order compelling payment of support or maintenance, or

distributive award[,] the court shall, upon a finding that such

failure was willful, order respondent to pay counsel fees to” the

other party’s attorney (Domestic Relations Law § 237 [c]). Here,

inasmuch as the court properly determined that defendant willfully

failed to pay child support pursuant to the judgment of divorce, it

therefore “properly awarded [plaintiff] an attorney’s fee [for legal

expenses she] incurred in enforcing those obligations” (McDermott v

McDermott, 54 AD3d 911, 912; see § 237 [c]; Simons v Simons, 139 AD2d

959, 961; cf. Boardman v Boardman, 300 AD2d 1110, 1111).

In appeal No. 2, we agree with defendant that the court erred in

failing to determine the disposition of real property located in

Idaho. In a prior appeal, we modified the judgment of divorce by

“remitting the matter to Supreme Court to determine the disposition of

the [real and personal] property in Idaho” (Johnson v Johnson, 68 AD3d

1685, 1686). On remittal, the court distributed the personal property

located in Idaho but failed to distribute the real property. Thus, we

modify the order in appeal No. 2 by remitting the matter to Supreme

Court to determine the disposition of the real property located in

Idaho (see id.). Finally, we reject defendant’s contention that the

court erred in distributing the parties’ personal property (see

Marcera v Marcera, 87 AD3d 1276, 1277).

Entered: September 27, 2013 Frances E. Cafarell

Clerk of the Court