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BY THE TIME OF SENTENCING FOR CONTEMPT FOR FATHER’S WILLFUL VIOLATION OF A SUPPORT ORDER, FATHER HAD PAID ALL THE ARREARS, FAMILY COURT SHOULD NOT HAVE ORDERED HIS INCARCERATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have ordered father incarcerated for 20 days for contempt for willful violation of a support order because, at the time of sentencing, father had paid all the arrears:

Upon finding that a respondent has willfully failed to obey a lawful order of support, Family Court may “commit the respondent to jail for a term not to exceed six months” (Family Ct Act § 454 [3] [a]). “Such a sentence is in the nature of a civil contempt, which ‘may only continue until such time as the offender, if it is within his or her power, complies with the support order'” ( … see Family Ct Act § 156 … ). Inasmuch as the father paid his child support arrears in full prior to the imposition of the sentence, Family Court abused its discretion by issuing the order of commitment … . Matter of Marotta v Casler, 2019 NY Slip Op 03417, Third Dept 5-2-19

 

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BECAUSE NO PETITION HAD BEEN FILED IN THIS SUPPORT ENFORCEMENT PROCEEDING, FAMILY... EVIDENCE OF MOTHER’S FAILURE TO COMPLY WITH CONDITIONS OF A SUSPENDED...