Cole v. Cole

Appellate Division of the Supreme Court of New York

Cole v. Cole

65 A.D.2d 643, 409 N.Y.S.2d 275, 1978 N.Y. App. Div. LEXIS 13362

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

DecidedOctober 12, 1978

StatusPublished

Cited by5 cases

This text of 65 A.D.2d 643 (Cole v. Cole) 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

Cole v. Cole, 65 A.D.2d 643, 409 N.Y.S.2d 275, 1978 N.Y. App. Div. LEXIS 13362 (N.Y. Ct. App. 1978).

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Opinion

—Appeal from an order of the Family Court, Warren County, entered July 12,1978, which found appellant in willful violation of an order of support and committed him to the Warren County Jail. Appellant made support payments in accordance with an order of the Family Court, but lost his employment on January 9, 1978. He was thereafter denied unemployment insurance benefits and did not find other work until shortly before the return date of the instant application under section 454 of the Family Court Act to punish his alleged willful failure to obey that order. Although nonpayment during the intervening period was conceded, appellant was the only witness at the hearing and his account of efforts to regain employment was uncontradicted. We find it unnecessary to consider appellant’s constitutional arguments since, despite the prima facie evidence of willfulness arising from such nonpayment, the weight of the evidence plainly demonstrated that his failure to comply with the order was caused by financial inability. The finding of a willful disobedience under these circumstances cannot be sustained and the order appealed from should be reversed. Order reversed, on the law and the facts, and petition dismissed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.

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—Appeal from an order of the Family Court, Warren County, entered July 12,1978, which found appellant in willful violation of an order of support and committed him to the Warren County Jail. Appellant made support payments in accordance with an order of the Family Court, but lost his employment on January 9, 1978. He was thereafter denied unemployment insurance benefits and did not find other work until shortly before the return date of the instant application under section 454 of the Family Court Act to punish his alleged willful failure to obey that order. Although nonpayment during the intervening period was conceded, appellant was the only witness at the hearing and his account of efforts to regain employment was uncontradicted. We find it unnecessary to consider appellant’s constitutional arguments since, despite the prima facie evidence of willfulness arising from such nonpayment, the weight of the evidence plainly demonstrated that his failure to comply with the order was caused by financial inability. The finding of a willful disobedience under these circumstances cannot be sustained and the order appealed from should be reversed. Order reversed, on the law and the facts, and petition dismissed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.

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Bluebook (online)

65 A.D.2d 643, 409 N.Y.S.2d 275, 1978 N.Y. App. Div. LEXIS 13362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-cole-nyappdiv-1978.

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