Lewis County Department of Social Services ex rel. Long v. Greene , 653 N.Y.S.2d 744 ( 1997 )

—Order unanimously reversed on the law without costs and matter remitted to Lewis County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in holding respondent in willful violation of a child support order (see, Family Ct Act § 454) without providing him an opportunity to establish that he did not have the ability to pay the ordered support. To establish a willful violation of a support order, nonpayment as well as ability to pay must be shown (see, Matter of Williams v Williams, 91 AD2d 1044, 1045; Matter of D’Angelo v D’Angelo, 57 AD2d 1042). The failure to pay support, as ordered, constitutes prima facie evidence of a willful violation (Family Ct Act § 454 [3] [a]; see, Matter of Miller v Miller, 205 AD2d 692). A respondent must, however, be afforded the opportunity to rebut that evidence (see, Matter of Aftuck v Aftuck, 100 AD2d 672, 673; Matter of Williams v Williams, supra).

Petitioner established respondent’s failure to pay the court-ordered child support. In response, respondent raised the issue of his ability to pay the ordered support. Thus, the court should have held a hearing on that issue (see, Matter of Delaware County Dept. of Social Servs. [Manon] v Manon, 119 AD2d 940; Matter of Williams v Williams, supra). Consequently, we reverse the order finding respondent in willful violation and incarcerating him for a period of six months, and remit the matter to Lewis County Family Court to determine whether respondent’s nonpayment was willful (see, Matter of Williams v Williams, supra). (Appeal from Order of Lewis County Family Court, Merrell, J.—Support.) Present—Lawton, J. P., Fallon, Doerr, Balio and Boehm, JJ.