Opinion
November 2, 1967
Order of Family Court, entered January 27, 1967, following hearing upon petition for violation of support order, unanimously reversed and vacated on the law and the facts, and in the exercise of discretion, without costs or disbursements, and matter remanded to the Family Court for rehearing and rendition of proper order. Where a respondent is brought before the court for failure to obey the provisions of a support order, the court should hold a hearing and take proofs on the issue of whether or not the failure of respondent was willful. (See Family Ct. Act, § 454; see, also, Matter of Emerick v. Emerick, 24 A.D.2d 872.) On the basis of the evidence adduced before it, the court should render a decision, which may be stated on the record, setting forth the essential facts in support of its order. (See Matter of Schwartz v. Schwartz, 23 A.D.2d 204; Matter of Harris v. Doley, 22 A.D.2d 769.) The court, in making its determinations, should exercise its discretion on the basis of evidence as to the means and earnings of the respondent, the needs of the petitioner and all facts and circumstances bearing on the alleged willful failure of respondent to comply with the support order. The present record does not support the court's determination which, although fixing the arrears at $1,478, postponed any payment by the respondent thereon until February 1, 1968, and provided for payments beginning then at only $10 monthly on such arrears.
Concur — Eager, J.P., Steuer, Tilzer, McNally and McGivern, JJ.