IN RE: Carmen OLANG (2026)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Orange County (Christine P. Krahulik, J.), dated March 3, 2025.  The order of commitment, upon a finding that the father willfully violated a prior order of child support, made after a hearing, committed the father to the custody of the Orange County Jail for a period of six months unless he paid the purge amount of $11,811.19 plus additional arrears.

ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the Orange County Jail for a period of six months unless he paid the purge amount of $11,811.19 plus additional arrears is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Nestor v. Nestor, 236 A.D.3d 794, 794, 229 N.Y.S.3d 533;  Matter of Stein–Zimic v. Zimic, 194 A.D.3d 823, 824, 143 N.Y.S.3d 895);  and it is further,

ORDERED that the order of commitment is reversed insofar as reviewed, on the law, without costs or disbursements, the finding that the father willfully violated a prior order of child support is vacated, and the matter is remitted to the Family Court, Orange County, for a new hearing on the petition and a new determination thereafter in accordance herewith.

The father and the mother have one child together.  In September 2023, the Family Court entered an order of child support (hereinafter the support order) directing the father to pay the mother certain child support.  In May 2024, the mother filed a petition alleging that the father was in violation of the support order.  On December 13, 2024, an order of disposition was entered upon the parties' consent, finding the father to be in willful violation of the support order and committing him to a term of incarceration of six months, but suspending his commitment on the condition that he make an immediate payment of $5,000 and remain compliant with the support order.  The father thereafter made the $5,000 payment.

In January 2025, the mother filed a petition seeking an order of commitment, alleging that the father was in violation of the support order.  On March 3, 2025, a hearing was held, after which the Family Court found that the father willfully violated that order.  In an order of commitment, the court committed the father to the custody of the Orange County Jail for a period of six months unless he paid the purge amount of $11,811.19 plus additional arrears.  The father appeals.

Although the appeal from so much of the order of commitment as committed the father to the custody of the Orange County Jail for a period of six months must be dismissed as academic, the appeal from so much of the order of commitment as, in effect, confirmed the finding that the father willfully violated the support order is not academic in light of the enduring consequences that could flow from the determination that he violated his support obligations (see Matter of Nestor v. Nestor, 236 A.D.3d at 795, 229 N.Y.S.3d 533;  Matter of Stein–Zimic v. Zimic, 194 A.D.3d at 824, 143 N.Y.S.3d 895).

Family Court Act § 454 requires that a hearing be held before the court may use any enforcement powers, including incarceration (see El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 18, 978 N.Y.S.2d 239, affd 26 N.Y.3d 19, 19 N.Y.S.3d 475, 41 N.E.3d 340;  Maroney v. Maroney, 208 A.D.2d 915, 617 N.Y.S.2d 874).  Family Court Act § 433(a) gave the father the right to be heard and to present witnesses in response to the competent proof supplied by the mother (see Lewis County Dept. of Social Servs. v. Greene, 236 A.D.2d 803, 804, 653 N.Y.S.2d 744).

“At a hearing pursuant to Family Court Act § 454 to determine whether a respondent has willfully failed to obey [a] lawful order of support, the burden is on the petitioner to establish that the respondent willfully violated the terms of the [order] by failing to pay the required support” (Matter of Ellis v. White, 186 A.D.3d 1682, 1683, 129 N.Y.S.3d 808 [internal quotation marks omitted];  see Family Ct Act § 454[3] ).  “Evidence that the respondent failed to pay child support as ordered constitutes prima facie evidence of a willful violation” (Matter of Hanrahand v. Hanrahand, 202 A.D.3d 679, 680, 158 N.Y.S.3d 630;  see Family Ct Act § 454[3][a];  Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154).  “If the petitioner makes this prima facie showing, the burden shifts to the respondent to present competent, credible evidence that his or her failure to pay support in accordance with the terms of the order was not willful” (Matter of Hanrahand v. Hanrahand, 202 A.D.3d at 680, 158 N.Y.S.3d 630;  see Matter of Powers v. Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154).

Here, under the circumstances, the father was deprived of a meaningful opportunity to be heard, as neither he nor the mother testified at the hearing or presented any evidence of willfulness.  The only person who testified at the hearing was a senior support investigator from the Orange County Support Collection Unit. Additionally, there was a question as to whether the father unequivocally requested to proceed pro se (see Matter of Mercado v. Arzola, 212 A.D.3d 815, 816, 181 N.Y.S.3d 656;  Matter of Aleman v. Lansch, 158 A.D.3d 790, 792, 72 N.Y.S.3d 122).

Accordingly, we remit the matter to the Family Court, Orange County, for a determination of whether the father wishes to waive his right to counsel, the assignment of new counsel if warranted, and a new hearing on the petition and a new determination thereafter.

CONNOLLY, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.