Miller v. Miller , 614 N.Y.S.2d 28 ( 1994 )

In a support proceeding pursuant to Family Court Act article 4, the appeal is from an order of the Family Court, Orange County (Ludmerer, J.), dated August 17, 1992, which determined that the appellant was in willful violation of a child support order of the same court.

Ordered that the order is reversed, 'on the law, and the petition is dismissed, without costs or disbursements.

The Family Court improvidently exercised its discretion in finding the appellant to be in willful violation of a child support order (see, Family Ct Act § 454). Although the failure to pay support as ordered constitutes prima facie evidence of a willful violation (see, Family Ct Act § 454 [3] [a]), in this case the record clearly evinces that the appellant, whose sole sustenance is derived from public assistance and child support payments, has no "income” as such term is defined in the Domestic Relations Law (see, Domestic Relations Law § 240 [1-b] [b] [5] [vii] [d], [e]). Since the Family Court made no finding as to the appellant’s ability to earn income, we find that the evidence of her lack of income effectively rebuts the presumption of willfulness arising from her failure to pay support. O’Brien, J. P., Pizzuto, Joy and Krausman, JJ., concur.