LEWIS COUNTY DEPARTMENT OF SOCIAL SERVICES DE LONG v. GREENE (1997)

 Family Court erred in holding respondent in willful violation of a child support order (see, Family Ct. Act § 454) without providing him an opportunity to establish that he did not have the ability to pay the ordered support.   To establish a willful violation of a support order, nonpayment as well as ability to pay must be shown (see, Matter of Williams v. Williams, 91 A.D.2d 1044, 1045, 458 N.Y.S.2d 641;  Matter of D'Angelo v. D'Angelo, 57 A.D.2d 1042, 395 N.Y.S.2d 806).   The failure to pay support, as ordered, constitutes prima facie evidence of a willful violation (Family Ct. Act § 454[3][a];  see, Matter of Miller v. Miller, 205 A.D.2d 692, 614 N.Y.S.2d 28).   A respondent must, however, be afforded the opportunity to rebut that evidence (see, Matter of Aftuck v. Aftuck, 100 A.D.2d 672, 673, 473 N.Y.S.2d 846;  Matter of Williams v. Williams, supra ).

Petitioner established respondent's failure to pay the court-ordered child support.   In response, respondent raised the issue of his ability to pay the ordered support.   Thus, the court should have held a hearing on that issue (see, Matter of Delaware County Dept. of Social Servs. [Manon] v. Manon, 119 A.D.2d 940, 501 N.Y.S.2d 210;  Matter of Williams v. Williams, supra ).  Consequently, we reverse the order finding respondent in willful violation and incarcerating him for a period of six months, and remit the matter to Lewis County Family Court to determine whether respondent's nonpayment was willful (see, Matter of Williams v. Williams, supra ).

Order unanimously reversed on the law without costs and matter remitted to Lewis County Family Court for futher proceedings.

MEMORANDUM: