Rockland County Department of Social Services v. Palatnik

59 A.D.2d 558, 397 N.Y.S.2d 149, 1977 N.Y. App. Div. LEXIS 13347

Opinion

In a support proceeding pursuant to article 4 of the Family Court Act, the appeal is from an order of the Family Court, Rockland County, dated March 28, 1977, which, after a hearing, adjudged that appellant had willfully disobeyed a prior order of support and sentenced appellant to a 60-day jail term, with execution of the sentence suspended on condition he pay arrears in the amount of $4,880 within 30 days or if the Supreme Court (in a modification proceeding) "finds that he does not have to pay alimony.” Order reversed, on the law and in the exercise of discretion, without costs or disbursements, and proceeding remitted to the Family Court for a full hearing , and a new determination consistent herewith. Appellant was admittedly in arrears and therefore in violation of the provisions of the prior support order. At the enforcement hearing he testified that his present salary was substantially below the salary he had received at the time of the divorce judgment and that his financial condition was such that he could not make the payments. No evidence was introduced to contradict that testimony. In our opinion the record is inadequate to establish that the nonpayment resulted from will-fullness rather than inability to pay. The court, in determining that a failure to make the required payments was willful, must exercise its discretion on the basis of "competent proof’ which requires, minimally, that some evidence be advanced tending to establish an ability to comply (see Family Ct Act, § 454; Matter of Cain v Cousar, 52 AD2d 924; Matter of Burchett v Burchett, 43 AD2d 970). Martuscello, J. P., Margett, Suozzi and O’Connor, JJ., concur.