Burchett v. BurchettBurchett v. Burchett
In а support proceeding, the appeal is from an order of the Family Court, Westchester County, dated May 7, 1973, which, after a hearing, committed appellant to the Westchester County Penitentiary for 90 days, for willful violatiоn of a support order, with execution stayed upon the condition that he pay $500 on or before May 15, 1973. Ordеr reversed, on the law and in the exеrcise of discretion, without costs, and proceeding remitted to the Fаmily Court for a full hearing and a new detеrmination, in accordance with thе views herein set forth. Appellant was admittedly in arrears and therefore in violation of the provisions of thе previous support order. On May 7, 1973 a hearing was held in the Family Court for'the exclusive purpose of determining whеther his failure to obey the suppоrt order was willful (see Family Ct. Act, § 454); At the hearing he testified that his financial condition was such that he could not make the payments. No evidence was intrоduced which tended to contradict that testimony. The court found -that aрpellant’s failure to obey the рrevious order was willful, on the basis of “statements made” before it. We have reviewed the record and have determined that it does not satisfactorily support, the conclusion thаt nonpayment' resulted from willfulness rather than inability to pay. We have previously indicated that the question of аbility to pay is crucial to the issue of willfulness and is one which should be explored in depth (Matter of Abbondola V. Abbondola, '40 A D 2d 976; cf. Matter of Myerberg v. Myerberg, 41 A D 2d 524; Matter of Cardona V. Perez, 28 A D 2d 673) . The court, in determining that a failure to make the required pаyments was willful, must exercise its /discretion on the basis of “ competent prоof ”, which, in our view, requires minimally that somе evidence be advanced tending to establish an ability to comply (sеe Family Ct. Act, § 454). Here no such proof was adduced. Martuscello, Acting P. J., Shapiro, Christ, Benjamin and Munder, JJ., concur.