Lewis County Department of Social Services ex rel. Long v. Greene

—Order unanimously reversed on the law without costs and matter remitted to Lewis County Family Court for further proceedings in accordance 804 with the following Memorandum: Family Court erred in holding respondent in willful violation of a child support order (see, Family Ct Act § 454) without providing him an opportunity to establish that he did not have the ability to pay the ordered support. To establish a willful violation of a support order, nonpayment as well as ability to pay must be shown (see, Matter of Williams v Williams, 91 AD2d 1044, 1045; Matter of D’Angelo v D’Angelo, 57 AD2d 1042). The failure to pay support, as ordered, constitutes prima facie evidence of a willful violation (Family Ct Act § 454 [3] [a]; see, Matter of Miller v Miller, 205 AD2d 692). A respondent must, however, be afforded the opportunity to rebut that evidence (see, Matter of Aftuck v Aftuck, 100 AD2d 672, 673; Matter of Williams v Williams, supra). Petitioner established respondent’s failure to pay the court-ordered child support. In response, respondent raised the issue of his ability to pay the ordered support. Thus, the court should have held a hearing on that issue (see, Matter of Delaware County Dept. of Social Servs. [Manon] v Manon, 119 AD2d 940; Matter of Williams v Williams, supra). Consequently, we reverse the order finding respondent in willful violation and incarcerating him for a period of six months, and remit the matter to Lewis County Family Court to determine whether respondent’s nonpayment was willful (see, Matter of Williams v Williams, supra). (Appeal from Order of Lewis County Family Court, Merrell, J.—Support.) Present—Lawton, J. P., Fallon, Doerr, Balio and Boehm, JJ.