Priester v. Ladeaux

—Peters, J. Family Court found respondent to be in violation of a prior order of support, dated April 26, 1989, having accrued arrears of $11,026. The court directed respondent to pay $50 per week in child support and $25 per week in arrearages. The court then sentenced respondent to 180 days incarceration with the sentence to be suspended provided that respondent made all payments due under the court’s order. Respondent appeals. Family Court’s determination that respondent failed to pay child support pursuant to a court order was based upon sufficient evidence and is affirmed (see, Family Ct Act § 454). Although respondent contends that his current income is insufficient to enable him to make the payments required under Family Court’s order, respondent’s current financial status is not solely determinative of the appropriate amount of child support due from him (see, Matter of Powers v Powers, 86 NY2d 63, 70). The amount payable in child support is based upon an assessment of the parent’s earning potential, given his capabilities (see, supra; Matter of Susan M. v Louis N., 206 AD2d 612). Proof was adduced before the Hearing Examiner showing that respondent could increase his earning capacity if he were to obtain a driver’s license and that his failure to do so was based upon his own willful refusal. Such obstinacy will not defeat a valid order of support (see, Matter of Powers v Powers, supra; Matter of Hoyt v Hoyt, 166 AD2d 816; Davenport v Guardino, 166 AD2d 349; Matter of Cox v Cox, 133 AD2d 828). Respondent’s remaining contentions are equally without merit. [906] Mikoll, J. P., Crew III, White and Casey, JJ., concur. Ordered that the order is affirmed, without costs.