finding of willful violation in New York

2020Furthermore, the father's appeal from the finding of willful violation made by the Support Magistrate and confirmed by Family Court must likewise be dismissed, inasmuch as the Support Magistrate's finding was made upon the father's default, and the father did not move before the Support Magistrate to vacate the default (Family Ct Act § 439[e]; Matter of Reaves v Jones , 110 AD3d 1276, 1277 [3d Dept 2013]).

2014Respondent’s appeal from that order must likewise be dismissed inasmuch as the Support Magistrate’s finding was made upon respondent’s default, and respondent did not move before the Support Magistrate to vacate the default (see Matter of Reaves v Jones, 110 AD3d 1276, 1277 [2013]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2013Turning to the merits, the record provides the clear and convincing proof necessary to support the finding of willful violation (see Matter of Holland v Holland, 80 AD 3d 807, 808 [2011]; Matter of Duane H. v Tina J., 66 AD3d 1148, 1149 [2009]; Matter of Aurelia v Aurelia, 56 AD3d 963 , 964 [2008]).

2013Turning to the merits, the record provides the clear and convincing proof necessary to support the finding of willful violation (see Matter of Holland v Holland, 80 AD 3d 807, 808 [2011]; Matter of Duane H. v Tina J., 66 AD3d 1148, 1149 [2009]; Matter of Aurelia v Aurelia, 56 AD3d 963 , 964 [2008]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2013Turning to the merits, the record provides the clear and convincing proof necessary to support the finding of willful violation (see Matter of Holland v Holland, 80 AD 3d 807, 808 [2011]; Matter of Duane H. v Tina J., 66 AD3d 1148, 1149 [2009]; Matter of Aurelia v Aurelia, 56 AD3d 963 , 964 [2008]).

2013Turning to the merits, the record provides the clear and convincing proof necessary to support the finding of willful violation (see Matter of Holland v Holland, 80 AD 3d 807, 808 [2011]; Matter of Duane H. v Tina J., 66 AD3d 1148, 1149 [2009]; Matter of Aurelia v Aurelia, 56 AD3d 963 , 964 [2008]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2013Initially, we note that the father’s appeal from the finding of willful violation is not moot, as such a finding may have “enduring consequences” with regard to future custody and visitation matters (Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see Matter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17 NY3d 854 [2011]; Matter of Ashley E. [Mark E.], 68 AD3d 1185, 1186 [2009]).

2012In a June 2010 Family Court proceeding, respondent was ordered to submit to a psychiatric examination due to his erratic behavior in court (Matter of Clark v Clark, 88 AD3d 1095, 1095 [2011], lv denied 18 NY3d 803 [2012], lv dismissed 18 NY3d 918 [2012]; Matter of Clark v Clark, 85 AD3d 1350, 1350 [2011], lvs dismissed 17 NY3d 846 [2011], 18 NY3d 918 [2012]).

2012In a June 2010 Family Court proceeding, respondent was ordered to submit to a psychiatric examination due to his erratic behavior in court (Matter of Clark v Clark, 88 AD3d 1095, 1095 [2011], lv denied 18 NY3d 803 [2012], lv dismissed 18 NY3d 918 [2012]; Matter of Clark v Clark, 85 AD3d 1350, 1350 [2011], lvs dismissed 17 NY3d 846 [2011], 18 NY3d 918 [2012]).

2012In a June 2010 Family Court proceeding, respondent was ordered to submit to a psychiatric examination due to his erratic behavior in court (Matter of Clark v Clark, 88 AD3d 1095, 1095 [2011], lv denied 18 NY3d 803 [2012], lv dismissed 18 NY3d 918 [2012]; Matter of Clark v Clark, 85 AD3d 1350, 1350 [2011], lvs dismissed 17 NY3d 846 [2011], 18 NY3d 918 [2012]).

2012In a June 2010 Family Court proceeding, respondent was ordered to submit to a psychiatric examination due to his erratic behavior in court (Matter of Clark v Clark, 88 AD3d 1095, 1095 [2011], lv denied 18 NY3d 803 [2012], lv dismissed 18 NY3d 918 [2012]; Matter of Clark v Clark, 85 AD3d 1350, 1350 [2011], lvs dismissed 17 NY3d 846 [2011], 18 NY3d 918 [2012]).

2012Here, the father presented no evidence, other than unsupported testimony, that he lacked the resources to pay or had made efforts to find and maintain full-time employment and, therefore, the record supports the finding of willful violation (see Matter of Santana v Gonzalez, 90 AD3d 1198, 1200 [2011]; Matter of Scott v Scott, 50 AD3d 1193, 1194 [2008]).

2012Here, the father presented no evidence, other than unsupported testimony, that he lacked the resources to pay or had made efforts to find and maintain full-time employment and, therefore, the record supports the finding of willful violation (see Matter of Santana v Gonzalez, 90 AD3d 1198, 1200 [2011]; Matter of Scott v Scott, 50 AD3d 1193, 1194 [2008]).

2012Here, the father presented no evidence, other than unsupported testimony, that he lacked the resources to pay or had made efforts to find and maintain full-time employment and, therefore, the record supports the finding of willful violation (see Matter of Santana v Gonzalez, 90 AD3d 1198, 1200 [2011]; Matter of Scott v Scott, 50 AD3d 1193, 1194 [2008]).

2012Here, the father presented no evidence, other than unsupported testimony, that he lacked the resources to pay or had made efforts to find and maintain full-time employment and, therefore, the record supports the finding of willful violation (see Matter of Santana v Gonzalez, 90 AD3d 1198, 1200 [2011]; Matter of Scott v Scott, 50 AD3d 1193, 1194 [2008]).

2017As the reference in this provision to section 842 suggests, since the Family Court only has jurisdiction to issue a final order of protection where a petition alleges that a family offense has been committed and the allegations in the petition are proved (Family Ct Act §§ 812, 841, 842; see also Matter of V.C. v H.C., 257 AD2d 27, 31-32 [1st Dept 1999]; Matter of Mary C. v Anthony C., 61 AD3d 682, 683 [2d Dept 2009]; Matter of Steinhilper v Decker, 35 AD3d 1101, 1102 [3d Dept 2006]), 2 section 846-a must be read to provide that the Family Court may only issue a final order of protection under

2017As the reference in this provision to section 842 suggests, since the Family Court only has jurisdiction to issue a final order of protection where a petition alleges that a family offense has been committed and the allegations in the petition are proved (Family Ct Act §§ 812; 841; 842; see also Matter of V.C. v H.C. , 257 AD2d 27, 31-32 [1st Dept 1999]; Matter of Mary C. v Anthony C. , 61 AD3d 682, 683 [2d Dept 2009]; Matter of Steinhilper v Decker , 35 AD3d 1101, 1102 [3d Dept 2006]), [FN3] section 846-a must be read to provide that the Family Court may only issue a final order of protection

2017As the reference in this provision to section 842 suggests, since the Family Court only has jurisdiction to issue a final order of protection where a petition alleges that a family offense has been committed and the allegations in the petition are proved (Family Ct Act §§ 812, 841, 842; see also Matter of V.C. v H.C., 257 AD2d 27, 31-32 [1st Dept 1999]; Matter of Mary C. v Anthony C., 61 AD3d 682, 683 [2d Dept 2009]; Matter of Steinhilper v Decker, 35 AD3d 1101, 1102 [3d Dept 2006]), 2 section 846-a must be read to provide that the Family Court may only issue a final order of protection under

2017As the reference in this provision to section 842 suggests, since the Family Court only has jurisdiction to issue a final order of protection where a petition alleges that a family offense has been committed and the allegations in the petition are proved (Family Ct Act §§ 812; 841; 842; see also Matter of V.C. v H.C. , 257 AD2d 27, 31-32 [1st Dept 1999]; Matter of Mary C. v Anthony C. , 61 AD3d 682, 683 [2d Dept 2009]; Matter of Steinhilper v Decker , 35 AD3d 1101, 1102 [3d Dept 2006]), [FN3] section 846-a must be read to provide that the Family Court may only issue a final order of protection

2017As the reference in this provision to section 842 suggests, since the Family Court only has jurisdiction to issue a final order of protection where a petition alleges that a family offense has been committed and the allegations in the petition are proved (Family Ct Act §§ 812, 841, 842; see also Matter of V.C. v H.C., 257 AD2d 27, 31-32 [1st Dept 1999]; Matter of Mary C. v Anthony C., 61 AD3d 682, 683 [2d Dept 2009]; Matter of Steinhilper v Decker, 35 AD3d 1101, 1102 [3d Dept 2006]), 2 section 846-a must be read to provide that the Family Court may only issue a final order of protection under

2017As the reference in this provision to section 842 suggests, since the Family Court only has jurisdiction to issue a final order of protection where a petition alleges that a family offense has been committed and the allegations in the petition are proved (Family Ct Act §§ 812; 841; 842; see also Matter of V.C. v H.C. , 257 AD2d 27, 31-32 [1st Dept 1999]; Matter of Mary C. v Anthony C. , 61 AD3d 682, 683 [2d Dept 2009]; Matter of Steinhilper v Decker , 35 AD3d 1101, 1102 [3d Dept 2006]), [FN3] section 846-a must be read to provide that the Family Court may only issue a final order of protection

2013“In the absence of a fact-finding hearing, there was no factual support for the finding that” respondent willfully violated the support order (Matter of Bradley M.M. [Michael M. — Cindy M.], 98 AD3d 1257, 1258 [2012]; see Matter of Shemeco D., 265 AD2d 860, 860 [1999]).

2013“In the absence of a fact-finding hearing, there was no factual support for the finding that” respondent willfully violated the support order (Matter of Bradley M.M. [Michael M. — Cindy M.], 98 AD3d 1257, 1258 [2012]; see Matter of Shemeco D., 265 AD2d 860, 860 [1999]).

2007As to the finding of willful violation, it is settled that such determination will not be disturbed if it is supported by a fair preponderance of the evidence, giving deference to Family Court’s assessment of the witnesses’ credibility (see Matter of Birch v Sayegh, 9 AD3d 514, 516 [2004]).

2007As the father conceded that his purpose in attending his children’s counseling session was not to “effectuate visitation,” and that he refused to leave when asked to do so by the mother (cf. Matter of Aumell v King, 18 AD3d 905, 906 [2005]), Family Court’s determination was properly supported.

2005However, according to the Fourth Department in Geary v Breen ( 210 AD2d 975, 976 [1994]), when a Support Magistrate makes a finding of willful violation, and refers the matter to a Family Court judge for disposition, "[o]bjections pursuant to Family Court Act § 439(e) may be taken to a final order of a Hearing Examiner [i.e., Support Magistrate] that a respondent has willfully violated an order of support".

1998A finding of willful violation of an order of support must be grounded upon a finding that respondent had the ability to pay and yet failed to do so (see, Family Ct Act § 455 [5]; Matter of Powers v Powers, 86 NY2d 63 ; Matter of Tarbell v Tarbell, 241 AD2d 702 ).

1998As the failure to pay support pursuant to a valid order “itself constitutes ‘prima facie evidence of a willful violation’ ” (Matter of Powers v Powers, supra, at 69, quoting Family Ct Act § 454 [3] [a]), the burden shifted to respondent to establish his inability to pay.