DECISION OF THE COURT On November 20, 2018 the attorney for the Respondent filed a “Notice of Objections to Decision & Order of a Support Magistrate” along with affirmations in support of the relief being requested sworn to by the Respondent and his counsel. An Affidavit of Service has been filed with the Court, indicating proper service of the Objection upon the Petitioner. A Rebuttal was submitted by the Petitioner and received by the Court within the statutory time-frame. On November 26, 2018 the Court requested a transcript of the proceedings pursuant to 22 NYCRR §205.37(c) which was received on December 28, 2018. In making its determination on the Objection, the Court reviewed the case file, exhibits and transcript of the proceedings.As background, on August 30, 2018 D.T. (hereinafter referred to as ‘Petitioner’) filed an application alleging that P.B. (hereinafter referred to as ‘Respondent’) violated an adjusted order of support which directed the Respondent pay the Petitioner child support in the amount of three-hundred and fourteen dollars per week. The matter came before the Support Magistrate for trial on October 23, 24 and 25 and the Respondent appeared with his counsel Luis J. Breyer, Esq. of counsel to the Hiscock Legal Aid Society and the Petitioner having appeared pro se.The Support Magistrate found the certified arrears study received into evidence established the requisite prima facie evidence that the Respondent willfully violated the underlying order of support and that no credible evidence was presented establishing an inability by the Respondent to make the required payments. The Support Magistrate referred the matter to this Court for confirmation of the willful finding with a recommendation that the Respondent be incarcerated for a period of ninety days and that he maintain a “job search log” documenting efforts made to gain employment.The Support Magistrate also granted a money judgment in favor of the Petitioner in the amount of $37,022.00 for arrears owed as of September 14, 2018. The Court will note prior judgments have been entered in favor of the Petitioner for unpaid child support and the Respondent’s total arrears exceed $120,000.00.The attorney for the Respondent Objects to the Support Magistrate’s determination, arguing that the Support Magistrate did not properly consider the medical documentation received into evidence demonstrating the Respondent’s inability to obtain and maintain employment due to “severe and limiting medical issues”. Counsel specifically argues the Respondent’s medical conditions that warrant a non-willful finding by the Support Magistrate include (1) the Respondent suffered from hernias which precluded employment prior to his incarceration in December of 2016 (2) although not being medically diagnosed with suffering from cardiac arrest the Respondent, while incarcerated, suffered from chest pains that required medical attention and that such symptoms continue (3) evidence demonstrated the Respondent was diagnosed with osteopenia and other related medical issues affecting his lower extremities as evidenced by a medical examination on September 10, 2018. The Respondent further argues mitigating circumstances exist demonstrating the Respondent’s inability to work for portions of the relevant period of time and should have been considered by the Support Magistrate.The Court will note the Respondent’s term of incarceration from December 2016 through May of 2017 was the result of being sentenced to a six month term of incarceration upon confirmation of a prior willful violation by this Court. (Docket: F-XXXX-09/15R)The Petitioner argues the Objection should be denied as the Respondent has the ability to be gainfully employed, the testimony proffered at the underlying hearing was not credible and the Respondent made admissions to having the ability to maintain employment. Furthermore, the Petitioner seeks a contempt finding against the Respondent and referral to the appropriate agency for criminal prosecution.The Court will note that while several exhibits were submitted as part of the Objection process the Court considered only evidence which was made part of the record before the Support Magistrate. Furthermore, to the extent the Respondent’s affirmation contains additional statements which were not offered at the hearing, such additional information may not be considered in the context of this Objection. (Lahrs v. Lahrs, 158 AD 2d 944)Under New York State law, an individual charged with the support of a child is presumed to have sufficient means to support the child, and failure to pay support as ordered constitutes prima facie evidence of a willful violation. (Family Court Act §454[3][a]; Matter of Jarrett v. Mosslih, 34 AD 3d 808) Upon this showing, the burden then shifts to the individual directed to make the required payments to offer credible evidence of their inability to pay their child support obligation. (Matter of Powers v. Powers, 86 NY2d 63; Matter of Reinninger v. Campbell, 47 AD 3d 635)In the instant proceeding, it was undisputed that the Respondent did not fulfill his child support obligation. Thus, the only issue before the Court is whether the Respondent met his burden and offered “some competent, credible evidence of his inability to make the required payments” sufficient to rebut the prima facie showing of a willful violation. (Matter of Mitchell v. Rockhill, 45 AD 3d 1140)Decisional case law has held that although medical documentation may demonstrate an individual has been diagnosed with a medical condition, such evidence does not per se qualify as competent medical proof preventing one from seeking or maintaining employment. (Matter of Sutton-Murley v. O’Connor, 61 AD3d 1054; Matter of Lewis v. Cross, 72 AD3d 1228) Specifically, the medical evidence received by the Support Magistrate must establish the medical condition has “affected [his or her] ability to work”. (Matter of Lewis v. Cross, 72 AD3d 1228; Matter of Hwag v. Tam, 158 AD3d 1216)The Court finds the medical documentation received into evidence and the testimony relative to the treatment of the Respondent’s hernias or related symptoms did not preclude the Respondent from seeking or obtaining employment. The Court will note that upon review of the medical documentation only restrictions, not prohibitions, were made upon the Respondent’s physical activity as a result of this medical condition. (Exhibit B page 367) While the Respondent testified that such conditions impaired his ability to work, competent medical evidence was not submitted to substantiate the Respondent’s assertion. (In the Matter of Yamonaco v. Fey, 91 AD3d 1322) Furthermore, at the hearing the Respondent testified to having fully recovered from the prior hernia surgery and was no longer suffering from any symptoms related thereto.The Respondent also claims that while incarcerated he was treated for cardiac arrest which impairs his ability to be gainfully employed. While it appears from the evidence adduced at trial that the Respondent experienced chest pains during his period of incarceration, there is no medical documentation supporting the assertion that the Respondent suffered from congestive heart failure. Furthermore, the medical records further reflect that on January 24, 2018 the Respondent’s treating physician noted during a physical examination that the Respondent was well-nourished, not suffering from any respiratory distress and his heart rate was normal with regular rhythm. (Exhibit B page 446) Thus, the Respondent should not be relieved from, nor experience a benefit, in not fulfilling his child support obligation based upon cardiovascular issues or incarceration. (Matter of Zaid S. v. Yolanda N.A.A., 24 AD3d 118; Matter of Ludwig v. Reyome,195 AD2d 1020)The Support Magistrate correctly determined that the Respondent’s lower extremity examination and results thereof do not warrant a finding that competent medical proof exists which prevents the Respondent from seeking and maintaining employment. (In the Matter of Wilson v. LaMountain, 83 AD3d 1154) It is noteworthy that the Respondent did not present any evidence documenting participation in physical therapy as suggested by Dr. R.D., his podiatrist, but instead requested a “total joint implant” which the podiatrist recommended against. (Exhibit B page 667)Furthermore, the Respondent did not present any proof or testimony that he has undertaken a search for any type of employment, engaged in any training, or undertaken any remedial measures. (Matter of Lindsay v. Lindsay-Lewis, 156 AD3d 642) The Respondent merely states that his medical conditions prevent him from being gainfully employed. The Court will also note the Respondent’s testimony demonstrates that while he is not currently “employed”, upon his own admission he has engaged in and continues to be “actively doing different things” relating to automobile sales. The Respondent further testified he provides assistance to individuals in obtaining motor vehicles and upon completion of such transactions has refused a “birddog fee” due to not needing monetary payment. He further testified that he requested that any fee earned be returned to the customer.The Court finds the Respondent’s refusal to receive monetary commissions, for services resulting in the sale of automobiles inconsistent with his obligation to provide financial support for the child. As such, this behavior further supports the Support Magistrate’s willful violation finding.Therefore, upon review of the record the Court finds that the Support Magistrate did not err in finding that the Respondent’s testimony lacked credibility and that he possesses the ability to find employment. The Court also finds that much of the Respondent’s testimony in relation to medical documentation is contradictory in many respects. (In the Matter of Espinal-Melendez v. Vasquez, 160 AD3d 852)In conclusion, the Support Magistrate did not err in finding that the Respondent did not present competent evidence at trial that his medical conditions or health prevents him from seeking and accepting employment. (In the Matter of Lewis v. Cross, 72 AD3d 1228) Furthermore, upon review of the voluminous medical documentation received into evidence, Court finds such records do not contain any diagnosis or conclusion that would preclude the Respondent from seeking employment. (Matter of Sutton-Murley v. O’Connor, 61 AD 3d 1054) Under these circumstances, the Respondent did not meet the required burden of demonstrating an inability to pay child support and there was no error by the Support Magistrate in finding that the violation of support was willful. (Matter of Chowanec v. McDermott, 12 AD2d 441)Accordingly, the Respondent’s Objection is hereby denied and the Court will proceed on January 28, 2019 at 11:00 AM in Part One of Onondaga County Family Court in accordance with Section 439-a of the Family Court Act.So Ordered.
