IN THE MATTER OF MUSARRA v. MUSARRA

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Docket Number

2005-00605.

Attorney(S)

Amy L. Colvin, Halesite, N.Y., for appellant. Jerome A. Wisselman, P.C., Great Neck, N.Y. (Randall K. Malone of counsel), for respondent.

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Smart Summary

Factual and Procedural Background

The mother sought, inter alia, an upward modification of child support and child support arrears, alleging the father failed to make court-ordered child support payments in July and October 2003 pursuant to the parties' February 21, 1997 judgment of divorce. After a hearing, the Support Magistrate denied the mother's request for an upward modification of child support arrears, found that the father's failure to pay in July and October 2003 was willful, and on September 15, 2004 awarded the mother attorney's fees of $10,019.22. The mother filed objections to the denial of her petition; the father filed objections to the attorney's fee award. The Family Court denied the objections. The father appealed, limited by his brief. The Appellate Division modified the order by reducing the attorney's fee award to $3,826 and affirmed the order as modified, without costs or disbursements.

Legal Issues Presented

Whether the father preserved for appellate review the challenge to the Support Magistrate's finding that his failure to pay child support was willful.
Whether the father's failure to pay child support in July and October 2003 was willful.
Whether the attorney's fee awarded under Family Court Act § 438(b) was appropriate in amount and, if not, the appropriate fee to award.

Arguments of the Parties

Mother's Position

Sought an upward modification of child support and arrears based on the father's alleged failure to pay in July and October 2003.

Father's Position

Contended his violation was not willful.
Testified he paid other bills in the months he did not make child support payments and that he "simply forgot" to make the payments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Redmond v. Easy, 18 AD3d 283	Hearing of objections in Family Court is the equivalent of an appellate review.	Used to state that the father's failure to object to the Support Magistrate's finding preserved—or, here, failed to preserve—the willfulness issue for appellate review.
Matter of Manocchio v. Manocchio, 16 AD3d 1126	Deference to Support Magistrate's credibility determinations.	Supported giving great deference to the Support Magistrate's finding of willfulness based on credibility assessments.
Matter of Department of Social Servs. v. Henderson, 269 AD2d 395	Support Magistrate credibility determinations merit deference.	Reinforced deference to the Support Magistrate's factual and credibility findings regarding willfulness.
Matter of Powers v. Powers, 86 NY2d 63	Proof of failure to pay court-ordered support establishes a prima facie case of willful violation, shifting burden to the obligor to show inability to pay.	Applied to hold that the father's failure to pay created a prima facie case of willfulness and shifted the burden to him, which he did not meet.
Popelaski v. Popelaski, 22 AD3d 735, 737	Burden-shifting principle regarding inability to pay after prima facie proof of nonpayment.	Used to support that the father bore the burden of producing competent, credible evidence of inability to pay and failed to do so.
Matter of Israel v. Israel, 273 AD2d 385	Factors to consider in computing an appropriate attorney's fee (ability to pay, nature/extent of services, complexity, reasonableness).	Guided the court's reassessment of the attorney's fee award and reduction to $3,826 as the appropriate fee for the violation petition.
Matter of Getman v. Getman, 156 AD2d 686	Consideration of factors in determining reasonable attorney's fees.	Referenced in evaluating the reasonableness of the attorney's fee award and determining the appropriate reduced amount.

Court's Reasoning and Analysis

The court first determined that the father failed to preserve the willfulness issue for appellate review because he did not object to the Support Magistrate's finding when hearing objections in Family Court (which functions as appellate review). Despite the preservation issue, the court addressed the merits and found the father's contention that his violation was not willful to be without merit. The Support Magistrate's finding of willfulness was entitled to great deference because the magistrate is best positioned to assess witness credibility. The court explained that proof of nonpayment established a prima facie case of willful violation, shifting the burden to the father to present competent, credible evidence of inability to pay (citing Family Court Act § 454[a] and relevant case law). The father presented no evidence of inability to pay; instead he testified that he paid other bills and forgot to pay child support, which did not rebut the prima facie case. Because a finding of willfulness was supported, Family Court Act § 438(b) required an award of attorney's fees to the mother. However, the court concluded the Support Magistrate erred in the amount awarded. Applying factors including ability to pay, nature and extent of services, complexity, and overall reasonableness (as guided by cited precedents), the court found $3,826 to be the appropriate attorney's fee incurred with respect to the violation petition and substituted that amount for the original award.

Holding and Implications

The order is modified to delete the attorney's fee award of $10,019.22 and to award the mother an attorney's fee of $3,826; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Implications: The direct effect is that the mother is awarded $3,826 in attorney's fees related to the violation petition rather than $10,019.22. The opinion does not announce or rely on a new legal rule beyond applying established principles regarding preservation, deference to Support Magistrates, prima facie proof of nonpayment and burden-shifting, and factors for computing attorney's fees.

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In the Matter of VIVIAN MUSARRA, Respondent, v. ROBERT MUSARRA, Appellant.

Ordered that the order is modified, on the law and the facts, by deleting the provision thereof awarding the mother an attorney's fee in the sum of $10,019.22, and substituting therefor a provision awarding the mother an attorney's fee in the sum of $3,826; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

This case involves a proceeding wherein the mother, inter alia, sought an upward modification of child support and child support arrears, claiming the father failed to make child support payments in July and October 2003 pursuant to the parties' February 21, 1997 judgment of divorce.

Following a hearing, the Support Magistrate denied that branch of the mother's petition which was for an upward modification of child support arrears, finding that her increased expenses were not unanticipated, and that there was no showing that the children's expenses were not being met. The Support Magistrate additionally found that the father's failure to pay support in July and October 2003 was willful. On September 15, 2004 the Support Magistrate awarded the mother an attorney's fee in the sum of $10,019.22.

The mother filed objections to the Support Magistrate's denial of her petition for an upward modification of child support and the father filed objections to the award of an attorney's fee. The Family Court denied the objections. The father brought this appeal.

Preliminarily, we note that the father failed to preserve the willfulness issue for appellate review. The hearing of objections in Family Court is the equivalent of an appellate review ( see Matter of Redmond v. Easy, 18 AD3d 283). The father did not file an objection to the Support Magistrate's finding that he willfully violated the support provisions of the parties' judgment of divorce.

In any event, the father's contention that his violation was not willful is without merit. The Support Magistrate found that the father's failure to pay child support was willful. Great deference should be given to the 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; Matter of Department of Social Servs. v. Henderson, 269 AD2d 395). Proof that the father failed to pay court-ordered support established a prima facie case of willful violation, shifting to him the burden of going forward with competent, credible evidence of inability to pay ( see Family Ct Act § 454 [a]; Matter of Powers v. Powers, 86 NY2d 63; Popelaski v. Popelaski, 22 AD3d 735, 737). The father presented no evidence that he was unable to pay child support. To the contrary, he testified that he paid his other bills in the months when he failed to make the court-ordered child support payments and that he simply forgot to make the payments. This does not rebut the prima facie evidence of willfulness.

Once a finding of willfulness was made, the court was required by Family Court Act § 438 (b) to award an attorney's fee to the mother. However, the court erred in awarding a fee in the sum of $10,019.22. Factors to be considered in computing an appropriate award of an attorney's fee include the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fee under all of the circumstances ( see Matter of Israel v. Israel, 273 AD2d 385; Matter of Getman v. Getman, 156 AD2d 686). Upon our review of the record, the appropriate award is $3,826, which constitutes the attorney's fee incurred with respect to the violation petition.