SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

55 

CAF 14-02118 

PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.

 

 

IN THE MATTER OF MARK A. MANDILE, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

KATRINA V. DESHOTEL, RESPONDENT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF

COUNSEL), FOR RESPONDENT-APPELLANT. 

MAUREEN A. PINEAU, ROCHESTER, FOR PETITIONER-RESPONDENT.

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

G. Nesser, J.), entered October 29, 2014 in a proceeding pursuant to

Family Court Act article 4. The order, among other things, confirmed

the Support Magistrate’s determination that respondent willfully

violated a court order and awarded petitioner a judgment in the sum of

$4,129. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by reinstating respondent’s objections

to the Support Magistrate’s denial of her cross petition, and as

modified the order is affirmed without costs, and the matter is

remitted to Family Court, Monroe County, for further proceedings in

accordance with the following memorandum: Respondent mother appeals

from an order adjudging that she willfully violated a prior order of

child support and denying her cross petition for downward modification

of her child support obligation. Contrary to respondent’s contention,

Family Court properly confirmed the finding of the Support Magistrate

that she willfully violated the child support order. “There is a

presumption that a respondent has sufficient means to support his or

her . . . minor children . . . , and the evidence that respondent

failed to pay support as ordered constitutes ‘prima facie evidence of

a willful violation’ ” (Matter of Christine L.M. v Wlodek K., 45 AD3d

1452, 1452, quoting Family Ct Act § 454 [3] [a]; see Matter of

Barksdale v Gore, 101 AD3d 1742, 1742). Here, it was undisputed that

respondent failed to pay the amounts directed by the order, and the

burden thus shifted to her to submit “some competent, credible

evidence of [her] inability to make the required payments” (Matter of

Powers v Powers, 86 NY2d 63, 70; see Matter of Jelks v Wright, 96 AD3d

1488, 1489). Respondent failed to meet that burden. Although

respondent presented evidence of a medical condition disabling her

from work, that evidence relates only to the period after the

violation petition was filed, not to the two-month period in which
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CAF 14-02118 

respondent failed to comply with the support order before the petition

was filed. Respondent thus “failed to demonstrate that [she] had made

reasonable efforts to obtain gainful employment to meet [her] child

support obligation” (Matter of Seleznov v Pankratova, 57 AD3d 679,

681). 

We agree with respondent, however, that the court erred in

failing to consider her objections to the Support Magistrate’s denial

of her cross petition for a downward modification of child support. 

Upon receiving those objections and any rebuttal, the court was

required to “(i) [remit] one or more issues of fact to the support

magistrate, (ii) make, with or without a new hearing, his or her own

findings of fact and order, or (iii) deny the objections” (Family Ct

Act § 439 [e]). Instead of reviewing the mother’s objections,

however, the court implicitly dismissed them when it stated on the

record that, if the cross petition was denied by the Support

Magistrate, the mother “will have to file another one.” We therefore

modify the order by reinstating the mother’s objections, and we remit

the matter to Family Court to review respondent’s objections to the

Support Magistrate’s denial of her cross petition in accordance with

Family Court Act § 439 (e). 

We have reviewed respondent’s remaining contentions and conclude

that they lack merit. 

Entered: February 11, 2016 Frances E. Cafarell

Clerk of the Court