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Supreme Court, Appellate Division, Third Department, New York.

IN RE: BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of Laurie L. PARKES, Respondent, v. Kenneth D. PAINE Sr., Appellant.

Decided: December 28, 2006

Before:  MERCURE, J.P., CREW III, CARPINELLO, LAHTINEN and KANE, JJ. Abbie Goldbas, Utica, for appellant.

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered March 28, 2006, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to find respondent in violation of an order of support.

An order required respondent to pay Laurie L. Parkes $80 per week as child support for their two children.   Petitioner commenced this violation proceeding on behalf of Parkes when respondent fell behind in support.   The Support Magistrate found respondent in willful violation of the support order by default when he failed to appear at a hearing after previously appearing and being given notice of the hearing date.   A money judgment for arrears was issued in the amount of $2,008.89 and the matter was referred to Family Court.   Respondent did not contest the amount of arrears or finding of willfulness, but objected to the recommendation for incarceration.   Following adjournments, during which time respondent sought and obtained employment, the court confirmed the Support Magistrate's findings, found arrears at that time of over $3,000, imposed a three-month commitment to the county jail, suspended that sentence for one year on condition that respondent comply with the current support order and required him to pay an additional $200 per month toward arrears.   The court reasoned that the additional monthly payment of $200 would pay off the arrears within the one-year suspension of his commitment.   Respondent appeals.

 Respondent contends that Family Court erred in requiring him to pay $200 monthly toward arrears in addition to his weekly $80 support obligation because payments of the current and past due support would reduce his income below the self-support reserve.   His argument is unpersuasive, as the statute provides protection to a noncustodial parent only where the amount of the basic child support obligation, not arrears, would reduce his or her income below the self-support reserve (see Family Ct. Act § 413[1][d];  compare Family Ct. Act § 413[1][g] [limiting arrears to $500 where parent's income is less than the poverty line] ).

 Based on his willful violation, Family Court had the authority to commit respondent to jail for up to six months, as well as to suspend that sentence upon conditions (see Family Ct. Act § 454[3][a];  see also Matter of Armstrong v. Belrose, 9 A.D.3d 625, 627, 779 N.Y.S.2d 662 [2004] ).   While a court may abuse its discretion by requiring, as a condition to suspend incarceration, payment of a large amount of accumulated arrears within a short time period or without regard to the obligor's present ability to pay (see Matter of Orange County Dept. of Social Servs. [Carmen M.B.] v. Harold M., 137 A.D.2d 693, 524 N.Y.S.2d 782 [1988];  Matter of Nasser v. Abraham, 86 A.D.2d 973, 448 N.Y.S.2d 286 [1982];  Matter of Kelley v. Kelley, 31 A.D.2d 825, 298 N.Y.S.2d 36 [1969];  see also Altschul v. Altschul, 84 A.D.2d 798, 444 N.Y.S.2d 159 [1981];  compare Matter of Sands v. Sands, 105 A.D.2d 788, 481 N.Y.S.2d 427 [1984], lvs. dismissed 64 N.Y.2d 604, 485 N.Y.S.2d 1028, 475 N.E.2d 475, 64 N.Y.2d 767, 485 N.Y.S.2d 988, 475 N.E.2d 455 [1985] ), based on the financial information in the record, the court here did not commit such an abuse by requiring respondent to pay $200 per month toward his arrears as a condition to suspending his three-month sentence of incarceration.

ORDERED that the order is affirmed, without costs.



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