Tucker v. Tucker

Appellate Division of the Supreme Court of New York

Tucker v. Tucker

41 A.D.2d 995, 343 N.Y.S.2d 1013, 1973 N.Y. App. Div. LEXIS 4370

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

DecidedMay 24, 1973

StatusPublished

Cited by6 cases

This text of 41 A.D.2d 995 (Tucker v. Tucker) 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

Tucker v. Tucker, 41 A.D.2d 995, 343 N.Y.S.2d 1013, 1973 N.Y. App. Div. LEXIS 4370 (N.Y. Ct. App. 1973).

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Opinion

Appeal from an order of the Family Court of Warren County, entered January 23, 1973, committing appellant to the Warren County jail for 60 days for willful violation of a support order. While appellant admitted to being in arrears in his support payments, we find the record wholly lacking in evidence of his financial ability to make such payments. In order to constitute a willful failure to obey an order issued pursuant to article 4 of the Family Court Act, the ability to pay must also be established. Proof of nonpayment alone will not sustain the failure to obey the order as willful. (Matter of Probation Administrator v. Prospero, 37 A D 2d 759; Matter of Hall, 35 A D 2d 758.) Order reversed, on the law and the facts, without costs. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Kane, JJ., concur.

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Appeal from an order of the Family Court of Warren County, entered January 23, 1973, committing appellant to the Warren County jail for 60 days for willful violation of a support order. While appellant admitted to being in arrears in his support payments, we find the record wholly lacking in evidence of his financial ability to make such payments. In order to constitute a willful failure to obey an order issued pursuant to article 4 of the Family Court Act, the ability to pay must also be established. Proof of nonpayment alone will not sustain the failure to obey the order as willful. (Matter of Probation Administrator v. Prospero, 37 A D 2d 759; Matter of Hall, 35 A D 2d 758.) Order reversed, on the law and the facts, without costs. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Kane, JJ., concur.

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Bluebook (online)

41 A.D.2d 995, 343 N.Y.S.2d 1013, 1973 N.Y. App. Div. LEXIS 4370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tucker-v-tucker-nyappdiv-1973.

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