FATHER HAD PAID ALL THE CHILD SUPPORT HE OWED; THE SENTENCE OF INCARCERATION SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing Family Court, determined that the court should not have imposed a sentence of incarceration on father because father had paid all of the child support he owed:

We disagree … with the Family Court’s imposition of a sentence of incarceration upon its finding of willfulness since the parties agreed at the hearing that the father had paid the full amount due and owing. Although the court is empowered to impose a sentence of incarceration of up to six months for willful failure to comply with a support order (see Family Ct Act § 454[3][a] …), such incarceration may only continue until the offender complies with the support order (see Judiciary Law § 774[1] … ). Here, the court sentenced the father to a period of incarceration of 40 days, to be suspended under certain conditions, after the parties already had agreed that the father had paid all that was due and owing at that time. Under such circumstances, no period of incarceration should have been imposed … . Accordingly, since the court imposed a sentence of incarceration in contravention of Judiciary Law § 774(1), that provision of the … order must be deleted. Matter of Augliera v Araujo, 2020 NY Slip Op 03510, Second Dept 6-24-20