Calendar Date: April 25, 2018Before: Garry, P.J., Lynch, Clark, Aarons and Rumsey, JJ.__________Gordon, Tepper & DeCoursey, LLP, Glenville (Elise C. Powersof counsel), for appellant.McCarthy-Cerrito & Moore, Latham (Pamela L. Moore ofcounsel), for respondent.__________Garry, P.J.Appeal from an order of the Family Court of Saratoga County(Hall, J.), entered July 7, 2016, which dismissed petitioner’sapplication, in a proceeding pursuant to Family Ct Act article 4,to hold respondent in willful violation of a prior supportobligation.Petitioner (hereinafter the mother) and respondent(hereinafter the father) are the parents of a child (born in2001). The mother and father entered into a separation agreementthat was incorporated, but not merged, into their March 2014judgment of divorce. As pertinent here, the agreement providedthat the father would make a weekly child support paymentdirectly to the mother in a specified amount, that he would beresponsible for 30% of the child’s reasonable health careexpenses that were not covered by insurance, and that he wouldreimburse the mother for his share of such expenses within 15days after receiving proof that the mother had paid them. Theagreement also required the father to provide copies of his W-2forms and income tax returns to the mother each year.The mother commenced this support enforcement proceeding inJune 2015, alleging that the father had failed to make timelychild support payments, had delayed in paying or failed to paycertain health care insurance premiums and expenses, and hadfailed to turn over his 2014 W-2 forms and tax returns. After ahearing, the Support Magistrate found that no violation of theseparation agreement had occurred. The mother filed objections,which Family Court dismissed, finding that the mother had notprovided evidence of a willful violation. The mother appeals.Parents are presumed to have the means to support theirchildren under the age of 21 (see Family Ct Act § 437; Matter ofPowers v Powers, 86 NY2d 63, 68-69 [1995]). A showing that aparent has failed to pay child support as ordered establishes awillful violation on a prima facie basis and “shifts the burdento the parent who owes the support to come forward withcompetent, credible evidence of his or her inability to pay”(Matter of Dench-Layton v Dench-Layton, 151 AD3d 1199, 1201[2017]; see Matter of Powers v Powers, 86 NY2d at 69; Matter ofVincek-Breakell v Czizik, 155 AD3d 1384, 1385 [2017]). Themother testified that the father’s weekly child support paymentswere chronically delayed by “five, six, eight, nine weeks at atime” and did not become regular until after she commenced thisproceeding and he was ordered to make payments through theSupport Collection Unit. She stated that the father was alsoroutinely late in paying his share of the child’s medical anddental insurance premiums, which the agreement obligated him topay on the 15th and 30th of each month, and that he was likewisefrequently late in reimbursing her for his share of the child’suncovered health care expenses. The mother testified that shehad to write to him repeatedly to remind him of theseobligations, and she submitted a representative sample of theseletters into evidence.-3- 524692The most significant health care expense at issue was anorthodontic expenditure that the father failed to reimburse forapproximately a year after being notified of the obligation. Inan August 2014 letter, the mother provided the father with theorthodontist’s treatment plan and bill, advised the father of thepayment arrangements and the amount of his share of the cost, andgave him two options for making payment. She then made a downpayment followed by monthly installment payments, sending thefather receipts for each installment. She submitted intoevidence her credit card statement showing the down payment andthe check by which she paid the credit card bill, and testifiedthat she had sent a copy of the check to the father. She alsosubmitted into evidence an August 2014 email from the fatheradvising that he would not pay this obligation. The mothertestified that he did not make payment until after she commencedthis enforcement proceeding. Finally, the mother testified thatshe wrote to the father in February and April 2015 asking him toturn over his 2014 W-2 forms and income tax returns, but he didnot provide this documentation until after she commenced thisproceeding, when the father’s counsel submitted it with hisfinancial disclosure affidavit.Family Court’s determination that the mother failed toprove a willful violation is not supported by the record or thelaw. The mother’s testimonial and documentary submissions wereamply sufficient to make a prima facie showing that the father’sdelays and failures to satisfy his obligations were willfulviolations, thus shifting the burden to him to demonstrate hisinability to pay (see Matter of Vincek-Breakell v Czizik, 155AD3d at 1385; Matter of Cowan v Lott, 307 AD2d 480, 481 [2003]).In response, the father made no effort to show that he could notmeet his obligations; indeed, he admitted that he did not makethe orthodontic payment or turn over the tax information until hewas ordered to do so. Accordingly, he failed to satisfy hisburden (see Matter of Vincek-Breakell v Czizik, 155 AD3d at 1385;Matter of Fifield v Whiting, 139 AD3d 1128, 1129-1130 [2016];Matter of Boyle v Boyle, 101 AD3d 1412, 1413 [2012]). FamilyCourt thus erred in dismissing the mother’s objections. Contraryto the court’s determination, the fact that the father had paidhis obligations by the time of the hearing — at least in part,because he was ordered to do so — does not negate the evidencethat he repeatedly delayed in fulfilling some of hisresponsibilities and completely avoided others, forcing themother to make repeated efforts to obtain his compliance and,finally, to commence this proceeding.Family Court further erred in interpreting the parties’agreement to find that the father was not obliged to pay hisshare of the orthodontic expense because the mother did notsupply him with a formal receipt. Like any other contract, aseparation agreement is interpreted in accordance with the intentof the parties, which is to be gleaned, if possible, from thelanguage contained within the four corners of the contract (seeMatter of Meccico v Meccico, 76 NY2d 822, 823 [1990]; Desautels vDesautels, 80 AD3d 926, 928 [2011]). Significantly, “[i]ndiscerning the parties’ intent, courts are not limited to theliteral language of the agreement, but may consider whatever maybe reasonably implied from that literal language” (Matter ofDillon v Dillon, 155 AD3d 1271, 1272-1273 [2017] [internalquotation marks and citation omitted]). The agreement requiredthe mother to submit a “receipt” to the father within 15 daysafter incurring an uncovered health care expense and, in turn,required the father to reimburse her “within [15] days of receiptof proof of payment.” The mother testified that she suppliedreceipts for the orthodontic installment payments. As she didnot receive a receipt for the down payment, she instead providedthe father with the full documentation that she had. Inresponse, the father never demanded a formal receipt or claimedthat the documentation was inadequate; instead, he advised thathe would not pay until she gave him more contact with the child.Moreover, he did not reimburse her for any part of theinstallment payments for which she did provide receipts.As for the down payment, nothing in the parties’ agreement– which required the father to pay his share of “[a]ll” of thechild’s reasonable and necessary uncovered health care expenses –suggests that the parties intended to limit this obligation tothose expenditures that could be documented with formal receipts.On the contrary, the contract’s plain language obliges the fatherto reimburse the mother within 15 days after receiving “proof ofpayment by the [mother].” “[G]iving a practical interpretationto the language employed, so that the reasonable expectations ofthe parties may be realized” (Guntert v Daniels, 240 AD2d 789,790 [1997]), we find that the word receipt, when read in context,“reasonably implie[s]” any form of documentary proof that thepayment was made (Matter of Dillon v Dillon, 155 AD3d at1272-1273 [internal quotation marks and citation omitted]).Having received such proof, the father’s failure to reimburse themother within the required 15-day period was a willful violation(see Matter of Williams v Johnson, 56 AD3d 1021, 1022 [2008]).Family Court likewise erred in finding that the father didnot violate the agreement by failing to turn over his W-2 formsand tax returns. The agreement did not set a specific time limitfor this annual obligation but, rather, expressly provided thatthe purpose was to permit the parties “to determine if amodification [of the father's child support obligation was]required” — a purpose that unmistakably reveals that the partiesintended this information to be provided promptly enough topermit a timely assessment of the need for modification.Significantly, when the father was finally compelled to providethe documents, they revealed that his 2014 income wassubstantially higher than the prior income upon which the partieshad based the amount of his support payments. This belatedrevelation resulted in an eventual increase in the amount of hissupport obligation. By withholding his financial informationuntil he was forced to provide it, the father successfullydelayed this modification, and his failure to turn over thedocuments with reasonable promptness was another willfulviolation of the parties’ agreement.1As the father’s violations were willful, the mother isentitled to a mandatory award of counsel fees (see Family Ct Act§§ 438 [b]; 454 [3]; Matter of Duffy v Duffy, 30 AD3d 735, 737[2006]; Matter of Warner v Monroe, 262 AD2d 684, 686 [1999]).The matter must be remitted to Family Court for a determinationof the amount.Lynch, Clark, Aarons and Rumsey, JJ., concur.ORDERED that the order is reversed, on the law, withoutcosts, petition granted, and matter remitted to the Family Courtof Saratoga County for further proceedings not inconsistent withthis Court’s decision.ENTER:Robert D. MaybergerClerk of the Court
