Knights v. Knights

127 A.D.2d 905, 512 N.Y.S.2d 261, 1987 N.Y. App. Div. LEXIS 43405

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1987
• Status: Published

Opinion

Casey, J.

Appeal from an order of the Family Court of Columbia County (Leaman, J.), entered September 23, 1986, which denied petitioner’s application, in a proceeding pursuant to Family Court Act article 4, to modify a prior order of child support.

Upon a jury verdict finding him guilty of attempted rape in the first degree, petitioner was sentenced to an indeterminate term of imprisonment of 3 to 9 years. He thereafter petitioned to be relieved from the $80 per week child support obligation fixed in a prior order of Family Court, alleging that as a result of his incarceration he was financially unable to comply with the support order. Family Court concluded that it would be inequitable to permit defendant to benefit at the expense of his children from his own wrongful act, by avoiding an obligation that he might be able to satisfy once he is released from prison and regains employment. Family Court stated that it would not entertain a contempt motion based upon petitioner’s failure to pay support while he is incarcerated and that upon petitioner’s release from prison, when the arrears could be computed and petitioner’s ability and good-faith efforts to pay could be assessed, the court would entertain an application to modify the support order and/or the amount of the arrears. In the circumstances of this case, we see no abuse of discretion in Family Court’s denial of petitioner’s application.

Order affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur.