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ALTHOUGH FATHER DEMONSTRATED HIS FAILURE TO PAY CHILD SUPPORT WAS NOT WILLFUL, FAMILY COURT SHOULD HAVE ENTERED A MONEY JUDGMENT BASED ON HIS FAILURE TO OBEY THE LAWFUL ORDER OF CHILD SUPPORT (SECOND DEPT). ​

The Second Department, modifying Family Court, determined that although father demonstrated his failure to pay child support was not willful, a money judgment for father’s failure to obey a lawful order of child support should have been entered:

“Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support” … . Here, the mother presented evidence at the hearing of the father’s failure to pay child support as ordered. Specifically, the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support in the sum of $19,591.43. Therefore, the mother met her prima facie burden … .

The burden then shifted to the father to offer some competent, credible evidence that his failure to pay child support in accordance with the order was not willful … . The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. “Great deference should be given to the credibility determinations of the Support Magistrate, who is in the best position to assess the credibility of the witnesses” … .. Under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful.

Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should be entered in favor of the mother for the amount of child support arrears that accrued during the relevant period … . Matter of Santman v Schonfeldt, 2022 NY Slip Op 05693, Second Dept 10-12-22

Practice Point: Here father demonstrated his failure to pay child support was not willful. But the court still should have entered a money judgment against father based upon his failure to obey a lawful order of child support.

 

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