Cain v. Cousar

Appellate Division of the Supreme Court of New York

Cain v. Cousar

52 A.D.2d 924, 383 N.Y.S.2d 402, 1976 N.Y. App. Div. LEXIS 12773

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 17, 1976

StatusPublished

Cited by2 cases

This text of 52 A.D.2d 924 (Cain v. Cousar) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cain v. Cousar, 52 A.D.2d 924, 383 N.Y.S.2d 402, 1976 N.Y. App. Div. LEXIS 12773 (N.Y. Ct. App. 1976).

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Opinion

In a support proceeding, the appeal is from an order of the Family Court, Orange County, dated December 19, 1975, which, after a hearing, (1) found that appellant had willfully failed to comply with a prior order of support and ordered that he be committed to the county jail for six months and (2) failed to rule on appellant’s application for a downward modification of child support. Order reversed, without costs or disbursements, and proceeding remitted to the Family Court for a full hearing and (1) a new determination as to whether there was a willful violation of the support order and (2) a determination of the application for a downward modification. The statute requires that a finding of willful disobedience be based upon "competent proof’ (Family Ct Act, § 454). In Matter of Burchett v Burchett (43 AD2d 970) this court stated that the term "competent proof’, in the cited statute, "in our view, requires minimally that some evidence be advanced tending to establish an ability to comply”. An ability to comply is crucial to the issue of willfulness and must be explored in depth (see Matter of Pizzo v Pizzo, 47 AD2d 948; Matter of Burchett v Burchett, supra; Matter of Abbondola v Abbondola, 40 AD2d 976). Such issue was not explored in depth here. Hopkins, Acting P. J., Margett, Rabin, Shapiro and Hawkins, JJ., concur.

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In a support proceeding, the appeal is from an order of the Family Court, Orange County, dated December 19, 1975, which, after a hearing, (1) found that appellant had willfully failed to comply with a prior order of support and ordered that he be committed to the county jail for six months and (2) failed to rule on appellant’s application for a downward modification of child support. Order reversed, without costs or disbursements, and proceeding remitted to the Family Court for a full hearing and (1) a new determination as to whether there was a willful violation of the support order and (2) a determination of the application for a downward modification. The statute requires that a finding of willful disobedience be based upon "competent proof’ (Family Ct Act, § 454). In Matter of Burchett v Burchett (43 AD2d 970) this court stated that the term "competent proof’, in the cited statute, "in our view, requires minimally that some evidence be advanced tending to establish an ability to comply”. An ability to comply is crucial to the issue of willfulness and must be explored in depth (see Matter of Pizzo v Pizzo, 47 AD2d 948; Matter of Burchett v Burchett, supra; Matter of Abbondola v Abbondola, 40 AD2d 976). Such issue was not explored in depth here. Hopkins, Acting P. J., Margett, Rabin, Shapiro and Hawkins, JJ., concur.

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Bluebook (online)

52 A.D.2d 924, 383 N.Y.S.2d 402, 1976 N.Y. App. Div. LEXIS 12773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cain-v-cousar-nyappdiv-1976.

Opinion

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