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In the Matter of ORANGE COUNTY COMMISSIONER OF SOCIAL SERVICES, on Behalf of GENEVIEVE FRASER, Respondent, v. SELVIN GREEN, Appellant.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the contempt portion of the proceeding is dismissed.

"Proof of the father's failure to pay support [as] order[ed] constituted `prima facie evidence of a willful violation' (Family Ct Act § 454 [a]) and shifted the burden to him to come forward with competent, credible evidence of his inability to make the support payments" ( Matter of Greene v Holmes, 31 AD3d 760, 762). Here, the father offered documentary evidence at the hearing corroborating his contention that he failed to pay the child support at issue because he was unable to access funds that were improperly restrained pursuant to a levy placed on his bank account by the State of New Jersey Office of Child Support as a result of a collection proceeding commenced by the mother in that state. Although the mother offered no evidence to controvert the father's assertions in this regard, the Family Court nevertheless found the father's default to be willful on the basis of the mother's conclusory contention that the father had transferred his assets to his sister in an attempt to avoid his creditors, and the court's conclusion that the father should have borrowed the amount he owed from his sister. Since the evidence does not support a finding of willfulness, the father should not have been held in contempt. In view of our determination, we do not reach the father's remaining contentions.

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FRASER v. GREEN
(Dec 19, 2006)