Opinion
October 26, 1970
Appeal from an order of the Family Court, Essex County, committing the appellant to the Essex County Jail for a period of 30 days pursuant to section 454 FCT of the Family Court Act for failing to make support payments as previously ordered. An individual can be imprisoned under section 454 FCT of the Family Court Act for willful failure to make support payments ( Matter of Chase v. Brooke, 34 A.D.2d 595; Chase v. Griffin, 31 A.D.2d 681). We have no difficulty in finding the payments involved were properly ordered to be paid by appellant, but here the only proof introduced by the respondent was that payments were due under the order and had not been made. To constitute a willful failure the ability to pay must also be established and this respondent has failed to do to our satisfaction ( Matter of Atkins v. Atkins, 28 A.D.2d 1098). Accordingly, the order cannot, therefore, stand. Order reversed, on the law and the facts, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.