Opinion
March 31, 1975
In a support proceeding, the appeal is from an order of the Family Court, Orange County, dated October 30, 1974, which, after a hearing, committed appellant to the Orange County Jail for six months, upon a finding that he willfully violated a support order. Order reversed, on the law and the facts and in the exercise of discretion, without costs, and proceeding remitted to the Family Court for a full hearing and a new determination, in accordance with the views herein set forth. Appellant was admittedly in arrears and therefore in violation of the provisions of the previous temporary support order. On October 30, 1974 a hearing was held pursuant to section 454 FCT of the Family Court Act to determine whether his failure to obey the support order was willful. At the hearing, appellant testified to his inability to pay the arrears. Although no evidence was introduced which tended to contradict that testimony, the court nevertheless found that appellant's disobedience of the previous order had been willful. In our opinion the record is inadequate to establish that the nonpayment resulted from willfulness rather than inability to pay (see Matter of Burchett v Burchett, 43 A.D.2d 970). On a number of occasions we have indicated that the question of ability to pay is crucial to the issue of willfulness and 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). Hopkins, Acting P.J., Martuscello, Munder and Shapiro, JJ., concur.