Opinion
October 5, 1976
In a proceeding to enforce an order of support, the appeals are from two orders of the Family Court, Rockland County, dated March 24, 1976 and April 5, 1976, respectively. The first above-mentioned order inter alia directed appellant to post an undertaking or surety in the amount of $2,690, and the second above-mentioned order held him in contempt for violation of the first above-mentioned order and directed his commitment to the county jail for two days. Order of March 24, 1976 affirmed, without costs or disbursements. Order of April 5, 1976 reversed, without costs or disbursements, and proceeding remanded to the Family Court for the holding of a hearing to determine whether appellant willfully failed to comply with the order of March 24, 1976. In order to subject an individual to imprisonment for willfully violating a court order, his ability to comply must be established (Matter of Lieberman v Lieberman, 51 A.D.2d 745). Petitioner must therefore advance some evidence tending to establish that appellant had the ability to comply with the order (see Matter of Burchett v Burchett, 43 A.D.2d 970). Hopkins, Acting P.J., Margett, Damiani, Shapiro and Titone, JJ., concur.