Opinion
July 7, 1986
Appeal from the Supreme Court, Nassau County (Burstein, J., Kutner, J.).
Order affirmed, without costs or disbursements.
The evidence adduced at the hearing supported the finding of the hearing court that the defendant's nonpayment of support pursuant to the June 8, 1979, support order "resulted from willfulness rather than inability to pay" (Matter of Burchett v Burchett, 43 A.D.2d 970; Altschul v Altschul, 84 A.D.2d 798; Matter of Sands v Sands, 105 A.D.2d 788, lv dismissed 64 N.Y.2d 767; Occhiuzzi v Occhiuzzi, 108 A.D.2d 799). Moreover, contrary to the defendant's argument, the record demonstrates that any attempt to enforce the 1979 support order through means other than civil contempt, e.g., sequestration (see, Domestic Relations Law § 245) or a wage deduction order (see, Personal Property Law former § 49-b, recodified as CPLR 5242), would have been futile.
Finally, the defendant argues that (1) Special Term imposed a definite term of imprisonment upon him and thus found him in criminal contempt, and (2) criminal contempt is an improper means of punishment for failure to comply with an order of support.
The defendant's argument is without merit.
The proceeding herein was properly commenced for an adjudication of civil contempt (Domestic Relations Law § 245; Judiciary Law § 756; Wides v Wides, 96 A.D.2d 592). The power of the court to punish a civil contempt is limited by Judiciary Law § 774 (1) which states: "Where the misconduct proved consists of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it".
The jail term imposed in the order herein complied with the requisites of Judiciary Law § 774 (1) in that it could only commence, or continue, once commenced, for a maximum of 30 days, if the defendant failed to make the requisite payments on his arrears, as ordered by the court. It therefore constituted a proper remedy for civil contempt. Lazer, J.P., Mangano, Gibbons and Bracken, JJ., concur.