Opinion
November 16, 1976
Order, Family Court, New York County, entered August 31, 1976, adjudging respondent husband in contempt, unanimously reversed on the law and the matter remanded for a plenary hearing on the issue of respondent's willfulness in failure to make support payments, without costs and without disbursements. The respondent, in a proceeding before another Family Court Judge, was directed to make support payments to his wife. When the husband failed to make support payments, the wife brought a petition alleging violation of the prior support order and the husband cross-moved to vacate and annul the support order. The court concluded that it was bound by the findings of the prior Family Court Judge and declined to grant a hearing on the issue of the husband's ability to pay. The court (in December, 1975) found the husband in contempt and issued a warrant for his arrest. A subsequent application by the wife filed in April, 1976 resulted in the issuance of a new warrant and the eventual arrest of the husband in August, 1976, at which time the matter was referred back to the Judge who originally found the husband in contempt. At this August, 1976 hearing, the Judge deemed the proceeding an extension of the December, 1975 hearing and stated that the husband's failure to pay was willful as a matter of law. Testimony was limited to the issue of whether or not the husband had made support payments, notwithstanding the fact that the husband was ready to present testimony regarding his inability to pay. Mere nonpayment alone cannot establish willfulness (Matter of Cardona v Perez, 28 A.D.2d 673; Matter of Jennings v Jennings, 42 A.D.2d 568, 569), and the court should have taken testimony as to the husband's ability to pay.
Concur — Lupiano, J.P., Birns, Capozzoli, Lane and Nunez, JJ.