DECISION/FINDINGS OF FACT AND ORDER AFTER TRIAL The parties are divorced and have three children in common. All of the parties’ children are emancipated. On August 28, 2019, the mother, Kathleen M. (hereinafter “Mother” or “Ms. M.”) filed a violation petition against the father, Alex M., Sr. (hereinafter “Father” or “Mr. M.”). She sought to enforce this Court’s order, dated May 23, 2019, in which the parties’ child support arrears were established. See Dismissal Order & Findings of Fact (Toscano, S.M., 05/23/2019), Nassau County Family Court Docket Number F-09360-10/18H. Despite attempts to settle the matter, the case could not be resolved, and the matter was scheduled for trial. On March 10, 2020, a trial in the matter commenced. Ms. M. appeared with retained counsel, Howard Michael Stern, Esq. (hereinafter “Mr. Stern”). Ms. M. sought a willful finding, Mr. M.’s incarceration on the basis of his failure to comply with his obligation to pay child support arrears owed, and counsel fees. Mr. M. was present with assigned counsel, William Andrew Cadel, Esq. (hereinafter “Mr. Cadel”). During the course of the trial, only two witnesses testified: Ms. M. and Mr. M.. The parties admitted exhibits into evidence. Ms. M.’s case rested and, as the Court understood, there was only to be brief additional testimony on Mr. M.’s part. Due to the emergence of the global COVID-19 pandemic, the parties were unable to appear on the next scheduled trial date. Subsequently, during the course of emails between counsel and the Court, Mr. M. decided to rest his case, and Ms. M. waived rebuttal. The parties thereafter submitted written summations. The Court’s decision follows. THE EVIDENCE TESTIMONY Ms. M. testified that this Court issued an order establishing arrears in the amount of $29,886.84. She told the Court that Mr. M. never made one payment towards that arrears sum. She stated that she never received any communications from Mr. M. regarding payment. Ms. M. testified that she seeks a willfulness finding against Mr. M.. She told the Court that she also seeks a money judgment for all of the arrears owed to her by Mr. M. and an order directing Mr. M. to reimburse her for counsel fees incurred in pursuing her enforcement petition against him. Ms. M. testified that, by the time of trial, she spent $1,695.00 in attorneys fees for the case, which she paid “part[ly] in cash and the rest on a debit card.” Mr. M. testified that he rents a 3 bedroom, 1 bathroom home in Hempstead with his wife for $296.00 monthly through Options for Community Living. He told the Court that his rent is subsidized, and is based upon his income and his disability. He stated that his wife pays the rent. Mr. M. testified that he does not own a vehicle, and that he uses his wife’s car. He told the Court that he used to own a truck, but he gave his truck to Ms. M. to settle a previous petition. He stated that he receives food assistance. He explained that he gets food stamps, and he is also provided with food through a food pantry on a weekly basis, and from a Church on a monthly basis. He told the Court that he receives additional help with clothing and furniture from a Church as well as the St. Vincent de Paul organization. Mr. M. testified that he used to clean carpets and do flooring for a living, but he stopped working because of his disability. He told the Court that he used to receive Federal disability benefits, but he stopped receiving that income. He stated that while he was receiving those benefits, he gave Ms. M. about $600.00-$700.00. Mr. M. testified that his disability benefits ceased and he is hoping that the government will reinstate them. He told the Court that he made no efforts to overturn the determination that terminated his benefits, but he reapplied for them. DOCUMENTARY EVIDENCE Ms. M. admitted the parties’ General Order & Findings of Fact, dated September 16, 2019, as issued by this Court, into evidence as Petitioner’s Exhibit #1. Ms. M. admitted the parties’ Dismissal Order & Findings of Fact, dated May 23, 2019, into evidence as Petitioner’s Exhibit #2. Mr. M. admitted his Options for Community Living, Inc. Statement, dated November 21, 2019, into evidence as Respondent’s Exhibit B. Mr. M. admitted his Commonwealth of Virginia Certificate of Title for a Vehicle, into evidence as Respondent’s Exhibit D. Mr. M. admitted a copy of his February 27, 2020 Social Security Administration determination, into evidence as Respondent’s Exhibit G. DISCUSSION Where a party seeks to enforce the provisions of their child support order by filing a violation petition, it is the Petitioner’s burden to go forward, and such burden must be met through competent proof. See Powers v. Powers, 86 N.Y.2d 63, 68 (1995) (in appeal from violation hearing, “[p]etitioner agrees that the burden of proof is hers to sustain.”). New York State Family Court Act §437 provides that for the purposes of a violation hearing, a respondent is prima facie presumed to have sufficient means to pay child support. See N.Y. FAM. CT. ACT §437 (McKinney’s 2020). Moreover, New York State Family Court §454(3)(a) dictates that failure to pay child support as ordered constitutes prima facie evidence that a support order has been willfully violated. See N.Y. FAM. CT. ACT §454(3)(a) (McKinney’s 2020); see also Tamborello v. Tamborello, 181 A.D.3d 609, 610 (2d Dep’t 2020); Gorsky v. Kessler, 79 A.D.3d 746, 746 (2d Dep’t 2010). Under Powers v. Powers, 86 N.Y.2d 63 (1995) and its progeny, the burden then shifts to the respondent to demonstrate, through competent, credible evidence, that he or she was unable to pay. See Powers, 86 N.Y.2d at 68-70 (finding support collection unit supervisor’s testimony that respondent made only eleven out of thirty-two support payments was “competent proof of nonpayment,” shifting the burden to respondent); see also Cameron v. King, 160 A.D.3d 945, 946-47 (2d Dep’t 2018); Sullivan v. Kilkenny, 141 A.D.3d 533, 534 (2d Dep’t 2016); Barrett v. Barrett, 82 A.D.3d 974, 975-76 (2d Dep’t 2011); Maldonado v. Maldonado, 74 A.D.3d 971, 971-72 (2d Dep’t 2010); Rube v. Tornheim, 67 A.D.3d 916, 916-17 (2d Dep’t 2009). Having considered the presumptions set forth within New York State Family Court Act §§437 & 454, and the evidence presented, the Court finds that Ms. M. has met her burden of proving that Mr. M. was able to pay towards his child support arrears, and failed to make payments. The Court credits Ms. M.’s testimony that from the time that this Court issued its May 23, 2019 order establishing Mr. M.’s child support arrears, through the March 10, 2020 trial date, Mr. M. failed to make any payments towards that order. When the burden shifted to Mr. M., Mr. M. argued that he is medically incapable of working. However, he failed to demonstrate through competent, credible evidence that his condition prior to, and during the pendency of, the proceeding prevented him from being able to work in any capacity. See Pace v. Douglas, 141 A.D.3d 530, 532 (2d Dep’t 2016); see also Gavin v. Worner, 112 A.D.3d 928, 929 (2d Dep’t 2013), Atabay v. Cinar, 96 A.D.3d 832, 833 (2d Dep’t 2012), Aranov v. Aranov, 77 A.D.3d 740, 741 (2d Dept 2010). Mr. M.’s most recent Social Security Administration (hereinafter “SSA”) determination was admitted into evidence for the limited purpose of showing that the SSA decided that he is disabled and eligible for benefits. The SSA document does not preclude this Court from finding that Mr. M. is capable of working,1 and he provided no medical evidence to the contrary. See Gavin, 112 A.D.3d at 929, Aranov, 77 A.D.3d at 741. Such SSA determination can not sustain Mr. M.’s burden of proving that he is 100 percent disabled and unable to work. Notably, the SSA decision says nothing of the sort. Mr. M. argued in his written summation that he is “living hand to mouth.”2 This Court may not base its decision on sympathy, but rather must base its decision on the facts as applied to the law. See e.g. Circus Disco, Ltd. v. N.Y.S. Liquor Authority, 51 N.Y.2d 24, 38 (1980) (judges must base their decisions upon laws and not sympathy); People v. Leggett, 76 A.D.3d 860, 861-62 (1st Dep’t 2010) (judges must ensure fair and impartial trials); Mertsaris v. 73rd Corp., 105 A.D.2d 67, 92 (2d Dep’t 1984) (“[J]udges must examine a case with their heads and not their hearts.”); People v. Rogers, 13 Abb. Pr. 370, 381 (N.Y. Sup. Ct., Second Dist., Nov. 1872) (“A judge who from sympathy for the accused or for any other cause should do so, would inflict an unjustifiable injury upon the public interests.”). Moreover, Mr. M. failed to offer competent, credible proof establishing that his current situation is not one of his own making. Thus, the Court finds Mr. M.’s failure to pay towards his child support arrears to be willful. After a violation is found, a Support Magistrate has broad discretion as to the appropriate sanction. See Cameron, 160 A.D.3d at 947; see also Sullivan, 141 A.D.3d at 535. The Court may, inter alia, enter a money judgment, make an income deduction order for support enforcement, and suspend a respondent’s driver’s, professional, business or recreational licenses. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2020). Where a respondent is found to have willfully failed to pay child support, the Court may, inter alia, refer the matter to a judge with a recommendation that a respondent be incarcerated for a period of up to six months. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2020). In her written closing statement, Ms. M. renewed her application for a willful finding; in that, she seeks a money judgment for the amount of child support arrears owed to her as well as a counsel fees award.3 However, she maintained that she is no longer seeking a recommendation of incarceration as part of Mr. M.’s disposition. See id. Given that the Court has found Mr. M.’s nonpayment of child support arrears to be willful, and consistent with the disposition sought by Ms. M., the Court enters a money judgment in the amount of $21,050.34 for child support arrears owed.4 The Court also enters a money judgment in the amount of $1,695.00, which is the sum that Ms. M. testified during trial that she outlaid for legal fees in connection with the instant enforcement petition. ORDERED that, pursuant to New York State Family Court Act §454(2)(a), a money judgment in the amount of $21,050.24, plus costs and interest, be entered against Mr. M. and in favor of Ms. M. for child support arrears owed; and it is further, ORDERED that, pursuant to New York State Family Court Act §454(3), Mr. M. shall pay $1,695.00 for Ms. M.’s legal fees in connection with the instant enforcement petition. A money judgment shall issue in the amount of $1,695.00, plus costs and interest, as against Mr. M. and in favor of Ms. M., for legal fees owed. This constitutes the decision, opinion, and order of the Court. Dated: October 19, 2020
