Opinion
November 19, 1984
Appeal from the Family Court, Nassau County (Collins, J.).
Order affirmed, insofar as appealed from, without costs or disbursements.
While the record adequately supports appellant's contention of modest income, it also indicates that he made equally modest regular support payments for the first seven months following the order sought to be enforced. No evidence of any change of circumstances was adduced to explain his sudden. discontinuance of those payments, although he remained employed at a relatively constant salary throughout 1982 and 1983, the periods during which his failure to pay was found to be willful. The failure to make support payments and the absence of any attempt to modify the order of support is prima facie evidence of willfulness (Family Ct Act, § 454, subd 1, par [a]; Matter of Dickstein v Dickstein, 99 A.D.2d 929). Furthermore, the failure to use any part of one's wages to make payments during periods of regular employment is also prima facie evidence of willfulness (see, e.g., Matter of Roth v Roth, 45 A.D.2d 758; Matter of Stacy v Speanbury, 53 A.D.2d 984).
Appellant argues that due to the showing of his modest income and consequent inability to meet the payments in support order, the court's finding of willfulness was improper and, implicitly, claims he is entitled to the return of the $1,250 which he paid in order to avoid commitment. Although the record does perhaps lend some support for a finding that the court's conditional order was beyond appellant's present financial resources (see, e.g., Matter of Abbondola v Abbondola, 40 A.D.2d 976; Matter of Nasser v Abraham, 86 A.D.2d 973), appellant fails to explain how he was able to pay the $1,250 when he did. The finding of willfulness is virtually unavoidable on this record. Should appellant's future ability to meet his regular payments be impaired by the lump sum paid to avoid commitment, his remedy is to seek a modification of his support obligations pursuant to section 451 FCT of the Family Court Act. Weinstein, J.P., Brown, Boyers and Eiber, JJ., concur.