Under the circumstances, I disagree with the majority's conclusion that respondent made a prima facie "[demonstration of] his limited income and his efforts to meet his obligations". To the contrary, respondent showed nothing other than the manner in which he chose to spend his substantial income during the period in question (see, Matter of Department of Social Servs. v Hillock, 96 A.D.2d 625; cf., Matter of Carella v. Collins, 144 A.D.2d 78, 83; Matter of Cole v. Cole, 65 A.D.2d 643).
He was given the opportunity to purge his contempt by the payment each month thereafter of the monthly support plus $600 for arrears. Appellant's proof at the hearing was limited to his earnings and obligations from August through December, 1982, and he submitted no proof to rebut the statutory presumption of willfulness arising from his failure to pay support in 1983 (Family Ct Act, § 454, subd 1, par [a]). The record thus supports a finding of willfulness based upon appellant's failure to pay the basic support in 1983 (see Matter of Williams v. Williams, 91 A.D.2d 1044; Matter of Nasser v. Abraham, 86 A.D.2d 973; Matter of Cole v. Cole, 65 A.D.2d 643; see, also, Besharov, Practice Commentary, McKinney's Cons Laws of N.Y., Book 29A, part 1, Family Ct Act, § 454, pp 386-387). The petition, however, did not charge appellant with a failure to pay the monthly support of $600 and the penalty requested was incarceration for 45 days. It is a fundamental principle of law emphasized even in cases where rights of less standing than personal liberty are at stake that a person accused of wrongdoing be given notice of the charges made ( Groppi v Leslie, 404 U.S. 496, 502; Matter of Murray v. Murphy, 24 N.Y.2d 150, 157). What constitutes sufficient notice depends upon the particular circumstances of each case ( Matter of Spector v Allen, 281 N.Y. 251, 256-257; Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50 A.D.2d 462, 469, app dsmd 38 N.Y.2d 911), but it must be reasonably calculated to "apprise the party of the charges against him so as to enable him to adequately prepare and present a defense".
Assuming that his current circumstances "might" not constitute a willful failure to pay support as ordered, there is nothing to mitigate the flagrant failure to obey the order when he was working. The finding of willfulness has abundant support in this record (cf. Matter of Cole v. Cole, 65 A.D.2d 643). Order affirmed, without costs. Mahoney, P.J., Sweeney, Kane, Main and Herlihy, JJ., concur.
Under the present section 454, the mere fact of nonpayment does establish prima facie that the violation was willful. (See Matter of Cole v. Cole, 65 A.D.2d 643, holding that nonpayment was prima facie evidence of a willful violation.) Thus, when the petitioner is seeking to have respondent committed to jail for disobeying a support order, the petitioner is merely required to offer proof of respondent's failure to pay in order to establish a prima facie case.