Opinion
February 3, 1995
Appeal from the Supreme Court, Erie County, Howe, J.
Present — Green, J.P., Balio, Fallon, Callahan and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum:
Supreme Court did not err in finding defendant in civil contempt of court based upon his failure to meet his child support obligations (see, Domestic Relations Law § 245; Judiciary Law § 756). The record supports the determination that defendant's nonpayment was willful (see, Demchuk v. Demchuk, 181 A.D.2d 756) and that "plaintiff's resort to the enforcement devices listed in Domestic Relations Law § 245 would have been futile" (Bernstein v Bernstein, 190 A.D.2d 626, 627; see, Ruggerio v. Ruggerio, 173 A.D.2d 595, 598).
The court erred, however, in failing to afford defendant an opportunity to purge himself of contempt. Judiciary Law § 774 (1) provides that, "[w]here the misconduct proved consists of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed * * * [and i]n such case, the order, and the warrant of commitment, if one is issued, must specify the act or duty to be performed, and the sum to be paid". Here, the term of imprisonment should have been "conditioned upon the defendant's failure to pay all arrears within a specified time" (Stempler v. Stempler, 200 A.D.2d 733, 735). We, therefore, remit the matter to Supreme Court to specify the "act or duty to be performed, and the sum to be paid" (Judiciary Law § 774).
Defendant's remaining contention is without merit.