Sullivan v. Sullivan ( 1977 )

In a support proceeding, the husband appeals from an order of the Family Court, Suffolk County, dated November 6, 1975, which, inter alia, directed that he be committed to the Suffolk County Jail for his failure to comply with a prior order of support, as amended. Order reversed, without costs or disbursements, and proceeding remanded to the Family Court for a hearing with respect to appellant’s ability to comply with the orders granting support to petitioner. There has been no showing that appellant’s failure to comply with the support orders was willful. Before the failure to obey an order of support can be deemed to be willful, there must be a determination of the husband’s ability to pay (see Matter of Burchett v Burchett, 43 AD2d 970). Hopkins, Acting P. J., Martuscello, Cohalan and Damiani, JJ., concur.