Opinion
May 13, 1996
Appeal from the Family Court, Nassau County (Pudalov, J.).
Ordered that the order of disposition entered August 24, 1994, is reversed insofar as appealed from, on the facts and as a matter of discretion, without costs or disbursements, that branch of the petition which sought a finding that the appellant was in willful violation of the order of support dated April 30, 1992, is denied, and the provision committing the appellant to jail for a term of 90 days is vacated; and it is further,
Ordered that the order dated January 24, 1995, is reversed, on the facts and as a matter of discretion, without costs or disbursements, and the appellant's objection is granted.
The Nassau County Department of Social Services (hereinafter the DSS) failed to establish by clear and convincing evidence ( see, Matter of Cox v. Cox, 133 A.D.2d 828; Matter of Schmerer v McElroy, 105 A.D.2d 840) that the appellant's nonpayment of child support in violation of the order of support dated April 30, 1992, resulted from willfulness rather than the inability to pay ( see, Matter of Orange County Dept. of Social Servs. [Carmen M.B.] v. Harold M., 137 A.D.2d 693; Matter of Lieberman v Lieberman, 51 A.D.2d 745; Matter of Halleck v. Hayden, 47 A.D.2d 855). Although the proof of nonpayment proffered by the DSS was sufficient to establish its direct case ( see, Matter of Powers v Powers, 86 N.Y.2d 63, 68), the DSS wholly failed to controvert the appellant's testimony that he was indigent and could not find employment despite diligent efforts. Santucci, J.P., Altman, Krausman and Goldstein, JJ., concur.