Tucker v. Tucker , 41 A.D.2d 995 ( 1973 )

Appeal from an order of the Family Court of Warren County, entered January 23, 1973, committing appellant to the Warren County jail for 60 days for willful violation of a support order. While appellant admitted to being in arrears in his support payments, we find the record wholly lacking in evidence of his financial ability to make such payments. In order to constitute a willful failure to obey an order issued pursuant to article 4 of the Family Court Act, the ability to pay must also be established. Proof of nonpayment alone will not sustain the failure to obey the order as willful. (Matter of Probation Administrator v. Prospero, 37 A D 2d 759; Matter of Hall, 35 A D 2d 758.) Order reversed, on the law and the facts, without costs. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Kane, JJ., concur.