Opinion
January 14, 1977
Appeal from the Erie County Family Court.
Present — Marsh, P.J., Moule, Cardamone, Dillon and Goldman, JJ.
Order unanimously reversed, without costs, and matter remitted to Erie County Family Court for a hearing in accordance with the following memorandum: On April 29, 1976 an order was entered in Family Court, Erie County, directing respondent to pay $40 per week for the support of his wife and five minor children. On June 30, 1976 petitioner moved in Supreme Court by way of an order to show cause for a determination adjudging respondent in contempt of court for failing to comply with the earlier support order. The matter was referred to Family Court where in an order dated September 9, 1976 respondent was adjudged in contempt of court on the ground that he willfully failed to obey the order of support (see Family Ct Act, § 454). He was sentenced to a term of three months in the Erie County Correctional Facility but such commitment was stayed pending this appeal. In order to constitute a willful failure to obey an order of support the ability to pay must be established. The mere fact of nonpayment is insufficient to establish willfulness (Matter of Bruno v Bruno, 50 A.D.2d 701; Matter of Burchett, 43 A.D.2d 970; Matter of Jennings v Jennings, 42 A.D.2d 568; Matter of Tucker v Tucker, 41 A.D.2d 995). Upon his appearance in court, respondent asserted his inability to pay the arrears and made a statement concerning his physical disabilities and poor financial status. 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.