DECISION/FINDINGS OF FACT AFTER TRIAL The parties are divorced. See Stipulation of Settlement (M. v. C., 09/23/2016), Nassau County Supreme Court Index Number MA2015-202452; see also Judgment of Divorce (Schwartz- Zimmerman, J., 03/23/2017), Nassau County Supreme Court Index Number MA2015-202452. On October 5, 2023, the petitioner, M.A.M. (hereinafter “Ms. M”), filed a violation petition against the respondent, N.A.C. (hereinafter “Mr. C”). See Petition for Violation of Support Order (Individual) (Marmol, 09/21/2023), Nassau County Family Court Docket Number F-06904-21/23D. In her petition, Ms. M sought to enforce child support arrears due to her by Mr. C. See Id.; see also Decision/Findings of Fact After Inquest (Mendelson-Toscano, S.M., 04/21/2023), Nassau County Family Court Docket Number F-06904-21/21A. Despite attempts to settle the matter, the parties were unable to resolve the case. The matter proceeded to trial. Ms. M was represented by retained counsel, Wendy Lee Lipsky (hereinafter “Ms. Lipsky”) and Mr. C chose to represent himself. The Court heard testimony on June 12, 2024 and June 20, 2024. Ms. M testified with the assistance of a Spanish Interpreter. At the close of the proof, the Court reserved decision. The matter was adjourned for written summations to be received by no later than June 28, 2024 at 9:00 A.M. On June 27, 2024, Ms. Lipsky filed Ms. M’s summation. On June 28, 2024 at 10:30 A.M., Mr. C filed his summation; thus, his submission is untimely and has not been considered. After having reviewed the evidence and having applied such to the law, the Court’s determination follows: THE EVIDENCE TESTIMONIAL EVIDENCE Ms. M’s Testimony Ms. M testified that during the parties’ April 11, 2023 default trial, she was sworn as a witness and testified. She told the Court that, at the time, she was aware that there exist penalties for perjury and she told the truth. Ms. M testified that after the trial, this Court issued an order directing Mr. C to pay child support arrears to her of approximately $45,000.00. She told the Court that Mr. C did not pay any of those monies to her. She stated that this Court awarded her counsel fees to be paid by Mr. C, which he also never paid. She told the Court that she has been financially unable to pay her attorneys for their services so all of that money is still owed. Mr. C’s Testimony Mr. C testified that he has not filed a tax return or looked for a job in the last ten years. He told the Court that he has never held a W-2 job. He stated that he does not have a bank account. Mr. C testified that he used to work for a restaurant, but he has no current job. He told the Court that he volunteers his time as one of the directors of a non-profit company called F.U. Jamaica. He explained that he raises funds for the organization which he uses to fly back and forth to Jamaica towards F.U.’s mission. Mr. C testified that he also helps his mother manage several properties she owns, but he does not receive a salary. He explained that he is “not on clock” so he assists her “asneeded” doing “whatever is necessary.” Mr. C testified that his mother and daughter financially support him. He elaborated that his mother pays for his food as well as his $6,000.00 monthly rent. He stated that one of his daughters pays for the rest of his household’s expenses. He told the Court that his mother and all of his daughters pay for his unemancipated son’s living costs. Mr. C testified that he has a Toyota pickup truck registered in his name, but his license has been suspended. He told the Court that he has a “broken down” Mercedes at his disposal, which belongs to his mother. Mr. C acknowledged the order directing him to pay child support arrears and that he has not paid those monies to Ms. M. He also acknowledged the order directing him to pay Ms. M’s counsel fees related to the parties’ previous enforcement proceeding and that he has not paid any of that award to Ms. M. Mr. C testified that he did not pay upon the Court’s orders because he disagreed with the Court’s decisions. He explained that since the arrears order was issued upon default, the Court did not have all pertinent facts and documents to review. He maintained that if the Court had all of the necessary information, the Court’s determination would have been different. He stated that there are other court proceedings pending that are relevant to the Court’s prior dispositional order, one in Supreme Court and another in the Appellate Division. Mr. C testified that he has always been his son’s custodial parent. He told the Court that such information was confirmed in court by the report of an attorney assigned to represent his son during the course of his modification proceeding. He stated that for those reasons, Ms. M has no right to any arrears or counsel fees, that the Court should not have found for Ms. M, and there is nothing for this Court to enforce. Mr. C acknowledged that he filed motions to vacate this Court’s orders, and suspend and stay collection of his arrears through the Support Collection Unit, which were denied. He also acknowledged that he filed objections to this Court’s orders, which were denied. Mr. C further acknowledged that he filed a motion for this Court to recuse, which was denied. He conceded that no pending motion exists in the Appellate Division or any other court to stay the instant proceedings or the payments established during the parties’ default trial. DOCUMENTARY EVIDENCE Ms. M admitted the Court’s decision and order after her counsel fees application, dated May 25, 2023, into evidence as Petitioner’s Exhibit 4. Ms. M admitted the Court’s money judgment order, dated April 26, 2023, into evidence as Petitioner’s Exhibit 5. DISCUSSION Where a party seeks to enforce the provisions of their 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.”); see also Gioia v. Gioia, 204 A.D.3d 912, 913 (2d Dep’t 2022) (in child support contempt proceeding, petitioner’s burden to establish respondent willfully failed to pay ordered support). 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 support. See N.Y. FAM. CT. ACT §437 (McKinney’s 2024); see also Franco v. Paez, 2024 N.Y. App. Div. LEXIS 3124, at *2 (2d Dep’t, Jun. 5, 2024); Rabasco v. Lamar, 106 A.D.3d 1095, 1097 (2d Dep’t 2013). 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 2024); see also Gioia, 204 A.D.3d at 913; Cameron v. King, 160 A.D.3d 945, 946 (2d Dep’t 2018); 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 or did not have to pay. See Powers v. Powers, 86 N.Y.2d at 68-70 (finding support collection unit supervisor’s testimony at violation hearing that respondent made only eleven out of thirty-two support payments was “competent proof of nonpayment,” shifting burden to respondent); see also Gioia, 204 A.D.3d at 913; Cameron, 160 A.D.3d at 946-47; 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). Having considered the presumptions set forth within New York State Family Court Act §§437 & 454(3)(a) and the evidence presented, the Court finds that Ms. M has met her burden of proving that Mr. C was able to pay his child support obligation, but failed to make payments as ordered. See Gioia, 204 A.D.3d at 913 (mother met burden of showing father failed to meet child support obligation set forth in parties’ order and father failed to show his inability to comply); see also Rabasco, 106 A.D.3d at 1097 (father’s undisputed failure to pay upon child support order constituted prima face evidence of willfulness); Gorsky, 79 A.D.3d at 746 (mother met her prima facie burden where she presented testimony establishing father’s arrears, which arrears father admitted). The Court credits Ms. M’s testimony that Mr. C has not paid any of his child support arrears, which was corroborated by Mr. C’s own statements. The Court’s decision in evidence, dated May 25, 2023, establishes that Mr. C was ordered to pay child support arrears to Ms. M in the amount of $44,800.00 and counsel fees to Ms. M in the amount of $15,691.40. When the burden shifted to Mr. C, he failed to show through competent, credible evidence that he was unable to pay or was not required to pay. Mr. C admitted that he was aware of the Court’s orders and chose not to follow them because he disagreed with their contents. His cavalier attitude about his failure to comply is troubling at best. Regardless of Mr. C’s view of the wisdom or correctness of this Court’s decisions, the fact remains that he failed to pay upon court orders, which is contempt. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2024) (court powers where party failed to obey any lawful support order); see also N.Y. FAM. CT. ACT §156 (McKinney’s 2024) (applying contempt provisions of judiciary law to family court proceedings); N.Y. JUD. LAW §750 (McKinney’s 2024) (court’s criminal contempt power); N.Y. JUD. LAW §753 (McKinney’s 2024) (court’s civil contempt power); Ruci v. Navarro, 2024 N.Y. App. Div. LEXIS 1840, at *1 (2d Dep’t Apr. 3, 2024) (willfully violating child support order is contempt); Martucci v. Nerone, 198 A.D.3d 654, 654 (2d Dep’t 2021) (same); Binong Xu v. Sullivan, 155 A.D.3d 1031, 1032 (2d Dep’t 2017) (affirming contempt finding; mother established by clear and convincing evidence father violated support provisions of parties’ judgment of divorce); Ashmore v. Ashmore, 114 A.D.3d 712, 713-14 (2d Dep’t 2014) (upholding civil contempt portion of referee’s report and recommendation; clear and unequivocal violation of failure to pay child support and maintenance required by divorce documents prejudiced rights of payee). Truth be known, despite Mr. C’s protestations about the reliability of the default trial and its outcome, it was Mr. C’s own insufferable conduct, his failure to comply with his mandatory financial disclosure obligation pursuant Family Court Act §424-a, and his failure to comply with this Court’s pre-trial order that was the impetus for his default in the underlying matter. See Dec. & O. after Counsel Fees Application (Toscano, 05/25/2023), Nassau County Family Court Docket Number F-06904-21/21A. Mr. C’s alternative argument that he should not have to pay because he is the child’s custodial parent is unavailing. He was not entitled to terminate his child support obligation as set forth within the parties’ divorce agreement until such time as he filed a modification petition. See N.Y. FAM. CT. ACT §451 (McKinney’s 2024) (no authority to reduce or annul child support arrears even where good cause exists for failing to seek modification or ordering arrears will result in grievous injustice); see also Westchester Cty. Dep’t. of Soc. Servs. v. Clarke, 188 A.D.3d 709, 710 (2d Dep’t 2020) (where paternity not established and child support improperly ordered, court was prohibited from reducing or vacating arrears accumulated prior to filing of appropriate petition); Adinolfi v. Callanan, 166 A.D.3d 966, 966 (2d Dep’t 2018); Caldwell v. Caldwell, 124 A.D.3d 649, 650 (2d Dep’t 2105); Fisher v. Nathan, 83 A.D.3d 938, 939 (2d Dep’t 2011); Madelowitz v. Bodden, 68 A.D.3d 871, 875 (2d Dep’t 2009). Mr. C’s modification petition, alleging that child support should cease since he is his son’s custodial parent, was granted by this Court on December 5, 2023. See Petition for Modification of an Order of Support (Curtis, 09/08/2023), Nassau County Family Court Docket Number F-06904-21/23C. The Court terminated Mr. C’s child support obligation, effective September 18, 2023, the date he filed his modification petition. See Order Terminating an Order of Support On Consent (Mendelson-Toscano, S.M., 12/05/2023), Nassau County Family Court Docket Number F-06904-21/23C. Any and all child support arrears accrued prior to that date remain due and owing. Mr. C and his son are being supported by his mother and daughters. Such an expectation is selfish and ill-thought. His family need not be their default caregivers by an arrangement in Mr. C’s head. The evidence showed that Mr. C chooses not to work. No medical evidence was presented to establish he is incapable of doing so. See Pace v. Douglas, 141 A.D.3d 530, 532 (2d Dep’t 2016) (no documentary proof of medical conditions preventing payee from working; willful finding affirmed); see also Greene v. Holmes, 31 A.D.3d 760, 762 (2d Dep’t 2006) (affirming father’s willful violation where claimed mental health diagnosis was not established through proof); Castillo v. Castillo, 23 A.D.3d 653, 654 (2d Dep’t 2005) (willful finding found proper; no medical evidence supporting claim of physical condition preventing ability to work). Mr. C should be employed and paying his child support arrears. The law is clear that where an order to pay is issued, a party must comply until such time as the Court amends the order, the order is overturned, or there is a court document staying payments. Mr. C’s several attempts to appeal this Court’s orders thus far have been futile. There exists no order staying the instant action or the payments established during the parties’ default trial. For the past fifteen months since the Court’s child support arrears order was issued, Mr. C has paid nothing at all. Not one cent. Mr. C appears to have no remorse about his failure to comply with the Court’s order, and no insight into the Court’s authority. For all of the aforementioned reasons, the Court is constrained to find that Mr. C has willfully failed to pay his child support arrears as ordered. To the extent that Ms. M sought a willful finding at trial that Mr. C failed to reimburse her for attorneys’ fees set forth within the Court’s May 25, 2023 order, no such allegations are stated within her petition. A support magistrate is only authorized to grant relief sought within a petition. See Abdul-Qadir v. Myrick, 85 A.D.3d 1041, 1041 (2d Dep’t 2011) (support magistrate had no jurisdiction to direct father to pay spousal support in absence of petition seeking such relief); see also Goetz v. Donnelly, 84 A.D.3d 804, 804 (2d Dep’t 2011) (finding that family court erred by granting relief to party in absence of application or motion for such relief); Musteric v. Lynch, 58 A.D.3d 634, 634 (2d Dep’t 2009) (affirming denial of party’s oral application since party neglected to include requested relief within petition); Papandrea v. Pallan, 56 A.D.3d 564, 565 (2d Dep’t 2008) (reversed and remitted; family court erred in directing father to pay additional child support where no petition filed seeking such relief). Accordingly, the Court declines to rule on such application. MR. C WAS AFFORDED DUE PROCESS DURING THE TRIAL At trial, when Mr. C had difficulty phrasing questions and offering evidence, and when the Court occasionally ruled against him, he asserted that the Court was depriving him of his right to a fair trial. Mr. C’s argument that he did not receive due process during the trial is specious. Due Process is a cornerstone of our system of justice codified within the United States Constitution as part of the Fourteenth Amendment, Section 11 as well as the New York State Constitution as part of Article I, Section 6.2 See U.S. CONST. AMEND. XIV, §1; see also N.Y. CONST. ART. I, §6. Due process requires notice and an opportunity to be heard. See People v. Baxin, 26 N.Y.3d 6 (2015); see also Raynor v. Landmark Chrysler, 18 N.Y.3d 48 (2011); Anita L. v. Damon N., 54 A.D.3d 630 (1st Dep’t 2008); 167-69 Allen Street H.D.F.C. v. Ebanks, 22 A.D.3d 374 (1st Dep’t 2005); Tyk v. N.Y. Education Dep’t, 19 A.D.3d 427 (2d Dep’t 2005); Commissioner of Social Servs. of the City of N.Y. v. Remy K.Y., 298 A.D.2d 261 (1st Dep’t 2002); Dariff v. Moskowitz, 252 A.D.2d 584 (2d Dep’t 1998). Thus, where a parent receives notice of the proceedings and an opportunity to litigate his or her position at a hearing, due process has been met. See Raynor, 18 N.Y.3d at 59; Anita L., 54 A.D.3d at 631; 167-69 Allen Street H.D.F.C., 22 A.D.3d at 376; Tyk, 19 A.D.3d at 429; Remy K.Y., 298 A.D.2d at 262; Dariff, 252 A.D.2d at 585. Mr. C chose to proceed as a self-represented party. Mr. C was properly served in the proceeding and had a full and fair opportunity to litigate his defenses at trial. Thus, Mr. C was afforded due process. Parties who represent themselves are held to the same standards as attorneys who are expected to know the rules of law, procedure, and evidence. See e.g. Basamanov v. Schiwcharan, 224 A.D.3d 435, 435 (1st Dep’t 2024) (self-represented party held to same standards of proof as those represented by counsel); Martinez v. Gaddy, 223 A.D.3d 816, 819 (2d Dep’t 2024) (decision to proceed pro se has no effect on burden to present legally competent evidence or to comply with court’s part rules); Bloom v. Hilpert, 222 A.D.3d 574, 575 (1st Dep’t 2023) (“While courts may afford a pro se litigant some latitude, a pro se litigant ‘acquires no greater right than any other litigant’”). On the court date preceding trial, Mr. C was informed of the dangers, disadvantages, and challenges of proceeding without counsel and the importance of complying with the Court’s pre-trial order and being fully prepared to proceed to trial with or without an attorney. Any inability to properly formulate questions or admit evidence at trial was due to his own lack of preparedness. See Basamanov, 224 A.D.3d at 435 (where complaint of inability to enter documents, finding trial court did not improperly prevent pro se party from presenting case); Bloom, 222 A.D.3d at 575 (party elected to self-represent so complaints of trouble getting documents into evidence was unwarranted; no deprivation of right to fair trial). Although a pro se party may be afforded some leeway, appearance as a self-represented litigant may not be used to deprive other litigants of their rights to a fair trial. See Martinez, 223 A.D.3d at 819; Matter of Evert, 72 A.D.3d 1081, 1082 (2d Dep’t 2010); Roundtree v. Singh, 143 A.D.2d 995, 995 (2d Dep’t 1988). Had the Court assisted Mr. C by providing legal guidance or advice, the Court’s duty to remain fair and impartial would have been violated. DISPOSITION A child support enforcement action is a contempt proceeding under which penalties may be imposed. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2024). 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 and recreational licenses. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2024). 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 2024). Given that the Court has found Mr. C’s non-payment of child support arrears to be willful, and the law permits a recommendation of incarceration for such a finding, the Court makes a recommendation that Mr. C be incarcerated for a period of 120 days with a purge amount of $44,800.00.3 In lieu of immediate incarceration and in the judge’s discretion, it is the Court’s recommendation that Mr. C be given an opportunity to cure his non-payment with a lump sum of $25,000.00 within seven days, with periodic payments thereafter. The Court also enters a money judgment, to be administrated through the Support Collection Unit, in the amount of $44,800.00 for child support arrears owed. Moreover, the Court enters an order suspending Mr. C’s driver’s license. ORDERED that, pursuant to New York State Family Court Act §454(3)(a), the matter be referred to a Judge of the Family Court with a recommendation that Mr. C be incarcerated for a period of 120 days with a purge amount of $44,800.00; and it is further, ORDERED that, in lieu of immediate incarceration and in the judge’s discretion, it is the Court’s recommendation that Mr. C be given an opportunity to cure his non-payment with a lump sum of $25,000.00 within seven days, with periodic payments thereafter; and it is further, ORDERED that, pursuant to New York State Family Court Act §454(2)(a), a money judgment in the amount of $44,800.00, plus costs and interest, be entered against Mr. C and in favor of Ms. M for child support arrears owed, to be administrated through the Support Collection Unit; and it is further, ORDERED that, pursuant to New York State Family Court Act §454(2)(e), Mr. C’s driver’s license shall be suspended. This constitutes the decision, opinion, and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATE-ISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL BY WAY OF OBJECTION MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom en]: Dated: July 3, 2024
