Tikwana P. v Keeshan E.

[*1] Tikwana P. v Keeshan E. 2016 NY Slip Op 50150(U) Decided on February 9, 2016 Family Court, Kings County Vargas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2016
Family Court, Kings County

Tikwana P., Petitioner,

against

Keeshan E., Respondent.



F-09363-06/13B
Javier E. Vargas, J.

Summons, Petition, Affidavit & Exhibits Annexed..................................1

New York City Office of Child Support Enforcement Accounts...............2

Order of Disposition, Findings of Fact & Underlying Hearing..................3

Court Proceedings Transcripts....................................................................4

Support Magistrate Court File....................................................................5

Upon the foregoing papers and for the following reasons, the application by Petitioner Tikwana P. (hereinafter "Mother"), for the confirmation of a Support Magistrate's factual findings of willfulness and recommendation of incarceration, is granted and the findings are confirmed as provided herein below.

The instant proceeding has a long and tortuous history encompassing two states, Virginia and New York, and dozens of ancillary proceedings. In 1999, Mother gave birth out-of-wedlock to the subject child of these proceedings, Keeshan T.E., whose father is Respondent Keeshan E. (hereinafter "Father"), in the Commonwealth of Virginia. Following court proceedings at the Stafford County Juvenile and Domestic Relations District Court of Virginia, Mother obtained an Order of Support (Civil) against Father, dated December 19, 2000, ordering him to pay child support for Keeshan in the amount of $227 per month as well as 50% of all uninsured medical and dental expenses. Based on his failure to pay child support, Father was incarcerated in Virginia for 12 months in 2002 and 2003. It is unclear whether or not he purged himself from the child support arrears following his incarceration.

Nevertheless, around 2006, Mother relocated to Brooklyn, New York, with the parties' child, and registered the Virginia Order in Kings County Family Court on March 17, 2006. Between January 2007 and November 2008, Father was consistent with his child support payments through the issuance of an Income Execution Order while working at the Pines Tree Supermarket, but he was eventually fired, allegedly for his nonattendance.

Several violations proceedings then ensued in Family Court as a result of Father's recalcitrant failure to comply with the domesticated Child Support Order. Indeed, Father paid absolutely no child support between 2009 and 2011, resulting in a Money Judgment issued against him in the sum of $20,484.23 on September 8, 2011 by a Family Court Support Magistrate. Following a finding of a willful violation of the Support Order, the Family Court (McElrath, J.) issued its first Order of Commitment on April 10, 2012, ordering his incarceration for a period of 26 consecutive weekends until he paid $8,500 in cash or certified funds. It appears that Father served his sentence without significantly reducing his arrears.

Relevantly herein, by Summons and Petition dated May 6, 2013, the New York City Corporation Counsel on behalf of the Mother commenced the instant child support enforcement and violation proceeding against Father, pursuant to Family Court Act § 453(a), alleging that he has violated the prior Order of Child Support dated December 19, 2000, and owes child support arrears of over $30,610. Upon the Mother's subsequent application, the Family Court (Arias, J.) issued a Warrant for the Father's Arrest on March 20, 2014, under Family Court Act § 453(d), which was vacated on August 14, 2014. An additional Money Judgment was entered against Father in the sum of $6,895.82 as of March 20, 2014. He thereafter became a participant of the Kings County Parent Support Program, pursuant to Family Court Act § 454(3)(b), but failed to comply with the Program's guidelines and report to the suggested employment sites. It should be noted that Father only made three payments of $20 each for a total of $60, towards his child support obligation in 2014.

Following Support Magistrate Harris's willfulness finding, the Family Court (Arias, J.) issued its second Order of Commitment, dated June 26, 2015, "until he satisfies the undertaking of $3,000." The related NYC Office of Child Support Enforcement Account Statement showed total child support arrears at that time of $34,472.21. According to the Support Magistrate, Father "accepted that the violation was willful . . . stat[ing] that he works as a barber and he failed to make payments because he was being selfish' and naive.'" Father involuntarily appeared for the Warrant on June 26, 2015 before the Hon. Maria Arias, who assigned counsel to him pursuant to County Law § 18B. Judge Arias then suspended Judgment and released him on [*2]July 1, 2015, with the understanding that Father was to start paying $100 per week toward the arrears, while maintaining current with his monthly child support. On the adjourned date of September 14, 2015, counsel advised Judge Arias that the Father had made no payment at all in the three months, except for a $50 payment, and the Court issued a Warrant for his arrest. The Account Statement demonstrated delinquent arrears amounting to $35,170.21 as of October 25, 2015.

In the resultant Order of Disposition dated February 1, 2016, Support Magistrate Harris again found, after a hearing, that Father had willfully violated the Order of Child Support, and recommended weekend incarceration for six months. The matter was referred to the undersigned for confirmation of the Support Magistrate Findings and recommended Disposition. In support of confirmation, the Assistant Corporation Counsel argued on behalf of Mother that Father has contumaciously, continuously and willfully failed to obey the underlying Child Support Orders, accumulating arrears of $35,851.21, and requesting his immediate incarceration for a continuous term of six months, unless he provides $5,000 to the Mother. In opposition, Father and his counsel advised the Court that incarceration was unwarranted at this time and that he would pay $500 upon obtaining a future loan from his current barbershop employer. The Father confirmed that he was currently gainfully employed as a barber at a hair salon named Cutting Lounge, but that he was using his salary to cover his living expenses, those of his current family and to pay the monthly rental for the salon chair. No good faith payment towards the exorbitant arrears was immediately offered or tendered in Court. This Court finds that incarceration appears to be the only viable option.

It is well settled that evidence of the failure to pay child support as ordered constitutes prima facie evidence of a willful violation (see Family Ct Act § 454[3][a]; Matter of Powers v Powers, 86 NY2d 63, 69 [1995]; Matter of Tordella-DiPalma v DiPalma, 128 AD3d 709, 710 [2015]; Matter of Gillison v Gillison, 122 AD3d 926, 927 [2014]). Once a prima facie showing of willfulness has been made, the burden shifts to the party who owes the child support to offer some competent, credible evidence of his or her inability to make the required payments (see Matter of Nassau County Dept. of Social Servs. v Henry, ___AD3d___, 2016 NY Slip Op 00660 [Feb. 3, 2016]; Matter of Rhodes v Nelson, 113 AD3d 864, 865 [2014]; Matter of Logue v Abell, 97 AD3d 582, 583 [2012]; Matter of Teller v Tubbs, 34 AD3d 593, 594 [2006]). Upon a willful finding, "the court shall order respondent to pay counsel fees" for the petitioner, and may "commit the respondent to jail for a term not to exceed six months," require him/her "to participate on a rehabilitive program," or place him on probation (Family Ct Act § 454[3]; see Matter of Martin v Cooper, 96 AD3d 849, 851 [2012]; Matter of Barrett v Barrett, 82 AD3d 974 [2011], lv denied 17 NY3d 703 [2011]). It is also settled that great deference should be given to a determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered (see Matter of Manocchio v Manocchio, 16 AD3d 1126 [2005]; Matter of Department of Social Servs. v Henderson, 269 AD2d 395 [2000]).

Applying these principles to the matter at bar, Father has failed to properly challenge the willfulness finding. Upon Mother's prima facie showing of Father's failure to pay child support as ordered for several years, Father has failed to meet his burden of offering credible — or, indeed, any — evidence of his inability to make the required payments, which current total exceeds an exorbitant $35,851 (see Matter of Musarra v Musarra, 28 AD3d 668, 669 [2006]). At the [*3]hearing, the Mother established, by clear and convincing evidence, that Father willfully and deliberately situated himself in a position to have limited income as a barber, and he did not demonstrate that he had made reasonable efforts to obtain additional employment or any loans or advances to meet his child support obligations (see Matter of Seleznov v Pankratova, 57 AD3d 679 [2008]; Matter of Teller v Tubbs, 34 AD3d 593 [2006]). To the contrary, the Father candidly asserted on the record that his income was specifically going to pay for his current expenses with his new family and child. He therefore willfully refused to even make a dent in the substantial arrears accumulated toward his child with Mother.

The Court has afforded Father several opportunities, referred him to the Parents Support Program, and being released him on payment conditions (see Family Ct Act §§ 454[3][b], [c]); however, the Father has consistently and contumaciously failed to comply with the Family Court Orders from both the States of Virginia and New York, including the latest Order where he was urged to pay $100 per week toward the arrears (see Matter of Columbia Support Collection Unit v Risley, 122 AD3d 1097, lv granted 24 NY3d 915 [2015]). True to form, Father only made five minimal payments in the ensuing six months totaling $210, not even covering the monthly child support amount of $227! He voluntarily chose to pay other expenses. Contrary to the Father's contentions, his claims of limited income and employment do not appear credible. Even if the Father were to be receiving public assistance, this would not conclusively establish his inability to pay child support and could not relieve him of his obligation to provide support for Keeshan (see Matter of Grant v Green, 293 AD2d 540 [2002]; Matter of Commissioner of Social Servs. v McDonald, 245 AD2d 506 [1997]). Nor is there any evidence of the Father has ever filed a petition for a downward modification in any Family Court of his child support obligations.

Given Father's recidivism and essentially conceded wilfulness in failing to pay child support, there is a real concern about the absence of a deterrent effect of imprisonment for him. Nonetheless, this Court hereby imposes the longest sentence possible as it cannot stand idly as Father repeatedly and contumaciously violated the Orders while his son, the young Keeshan, inevitably travels down the road of indigence and public assistance (see Family Ct Act § 454[3][a]). In accordance with the foregoing, the Court herein confirms and adopts the Support Magistrate's willfulness finding, and orders the Father committed to the NYC Department of Correction for a period of incarceration of six months to be completed intermittently during the weekends retroactively to February 1, 2016 (see Matter of Nassau County Dept. of Social Servs. v Henry, 2016 NY Slip Op 00660; Matter of Martin v Cooper, 96 AD3d at 849), when the Court actually ordered his commitment. This Court prefers weekend incarceration to permit Father to work during the week to satisfy his child support and arrears. The Father may purge his term of imprisonment by paying the sum of $5,000 in Court or to the Child Support Collection Unit in cash or by certified funds only.

The foregoing constitutes the Decision and Order of the Court.

E N T E R:

Dated: February 9, 2016

Brooklyn, New York[*4]J.F.C.

NOTICE:

Pursuant to Section 1113 of the Family Court Act, an appeal from this Order 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 the Appellant by the Clerk of Court, or 30 days after service by a party or the Attorney for the Child upon the Appellant, whichever is earliest.