McCarthy on Behalf of Erie County Dept. of Social Services v. Spearman

• Decision Date: 11 July 1983
• Citation: 96 A.D.2d 750,465 N.Y.S.2d 624
• Parties: In the Matter of Sharon McCARTHY, o/b/o ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant, v. James SPEARMAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 624

465 N.Y.S.2d 624

96 A.D.2d 750

In the Matter of Sharon McCARTHY, o/b/o ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant, v. James SPEARMAN, Respondent.

Supreme Court, Appellate Division Fourth Department.

July 11, 1983.

Eugene F. Pigott, Jr. by Peter S. Aiello, Buffalo, for appellant.

Lee C. Lamendola, Buffalo, for respondent.

Before DILLON, P.J., and DOERR, DENMAN, GREEN and MOULE, JJ.

MEMORANDUM:

Petitioner's action seeking enforcement of a prior support decree was dismissed at the close of its proof for failure to establish a prima facie case. Section 454 of the Family Court Act sets out the procedures by which support orders may be enforced. Paragraph (a) of subdivision one, which contemplates committing respondent to jail, requires a finding of willfulness (Matter of D'Angelo v. D'Angelo, 57 A.D.2d 1042, 395 N.Y.S.2d 806). The mere fact of nonpayment is insufficient to establish a willful violation; respondent's ability to pay must also be established (Matter of Continelli v. Continelli, 55 A.D.2d 1016, 391 N.Y.S.2d 212; Matter of Bruno v. Bruno, 50 A.D.2d 701, 375 N.Y.S.2d 442; Matter of Burchett v. Burchett, 43 A.D.2d 970, 352 N.Y.S.2d 219). Paragraph (a) under subdivision one provides that the fact of nonpayment is prima facie evidence of willfulness. Although petitioner was unable to enter several relevant documents into evidence, there was testimony by an employee of the Social Services Department that respondent was not paying support and a document prepared by an employee which calculated arrearages was admitted into evidence. This document is prima facie evidence that respondent is in arrears (Matter of Collier v. Hagood, 70 A.D.2d 528, 416 N.Y.S.2d 8). Therefore, assuming the court was proceeding under paragraph (a), the testimony concerning nonpayment and the document of arrearages constituted sufficient evidence of nonpayment to invoke the statutory presumption of willfulness.

Furthermore, there are other remedies available to Family Court under section 454 which do not require a finding of willfulness (see, e.g., Family Court Act, § 454, subd. 1, pars. [b], [c] and [d]; Badenhop v. Badenhop, 84 A.D.2d 773, 444 N.Y.S.2d 111). Accordingly, even if petitioner had failed to establish by prima facie evidence that respondent's violation was "willful", the petition should not have been dismissed since other remedies, other than incarceration, were available to the court.

Lastly, respondent's petition for modification should not have been dismissed for failure to comply with the order of support. Family Court has continuing plenary and supervisory jurisdiction, including the power to modify or vacate any prior support order and, upon good cause, to cancel any and all arrears thereunder (Matter of Pavich v. Pavich, 24 A.D.2d 482, 260 N.Y.S.2d 698). When a petition for violation of a prior...