From Casetext: Smarter Legal Research

Matter of Cain v. Cousar

Appellate Division of the Supreme Court of New York, Second Department
May 17, 1976
52 A.D.2d 924 (N.Y. App. Div. 1976)

Opinion

May 17, 1976


In a support proceeding, the appeal is from an order of the Family Court, Orange County, dated December 19, 1975, which, after a hearing, (1) found that appellant had willfully failed to comply with a prior order of support and ordered that he be committed to the county jail for six months and (2) failed to rule on appellant's application for a downward modification of child support. Order reversed, without costs or disbursements, and proceeding remitted to the Family Court for a full hearing and (1) a new determination as to whether there was a willful violation of the support order and (2) a determination of the application for a downward modification. The statute requires that a finding of willful disobedience be based upon "competent proof" (Family Ct Act, § 454). In Matter of Burchett v Burchett ( 43 A.D.2d 970) this court stated that the term "competent proof", in the cited statute, "in our view, requires minimally that some evidence be advanced tending to establish an ability to comply". An ability to comply is crucial to the issue of willfulness and must be explored in depth (see Matter of Pizzo v Pizzo, 47 A.D.2d 948; Matter of Burchett v Burchett, supra; Matter of Abbondola v Abbondola, 40 A.D.2d 976). Such issue was not explored in depth here. Hopkins, Acting P.J., Margett, Rabin, Shapiro and Hawkins, JJ., concur.


Summaries of

Matter of Cain v. Cousar

Appellate Division of the Supreme Court of New York, Second Department
May 17, 1976
52 A.D.2d 924 (N.Y. App. Div. 1976)
Case details for

Matter of Cain v. Cousar

Case Details

Full title:In the Matter of WILLIE M. CAIN, Respondent, v. THOMAS H. COUSAR, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 17, 1976

Citations

52 A.D.2d 924 (N.Y. App. Div. 1976)

Citing Cases

Rockland County Department of Social Services v. Palatnik

In our opinion the record is inadequate to establish that the nonpayment resulted from willfullness rather…

Andalora v. Dix

Given Supreme Court's referral to Family Court of "all future matters involving . . . child support," Family…