| Matter of Grasso v LaRocca |
| 2008 NY Slip Op 06833 [54 AD3d 760] |
| September 9, 2008 |
| Appellate Division, Second Department |
| In the Matter of Tracy Grasso, Respondent, v Joseph A.LaRocca, Appellant. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of commitment of the Family Court, Suffolk County (Freundlich, J.), dated October 24,2007, which, upon confirming an order of the same court (Orlando, S.M.), also dated October 24,2007, which, after a hearing, found that he willfully violated a prior order of support, committedhim to the custody of the Suffolk County Correctional Facility for a term of imprisonment of fivemonths unless he paid the sum of $5,000 to the Suffolk County Child Support Collection Unit.By decision and order on motion dated November 23, 2007, this Court directed that the father bereleased from civil confinement pending hearing and determination of this appeal upon certainconditions.
Ordered that the order of commitment is reversed, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Suffolk County, for a new hearingand a new determination thereafter on the issue of the father's ability to pay his child supportobligations.
In the absence of proof of an ability to pay, an order of commitment for willful violation of asupport order may not stand (see Yeagerv Yeager, 38 AD3d 534, 535 [2007]; Matter of Kainth v Kainth, 36 AD3d 915, 916 [2007]; Bisnoff v Bisnoff, 27 AD3d 606,607 [2006]; Matter of Riccio v Paquette, 284 AD2d 335 [2001]; Family Ct Act §455 [5]). The father's ability to pay was not adequately explored at the hearing. The order ofcommitment was, therefore, improperly made. Accordingly, we remit the matter to the FamilyCourt, Suffolk County, for a new hearing and a new determination thereafter on the issue of thefather's ability to pay his child support obligations (see Matter of Riccio v Paquette, 284AD2d at 335). Mastro, J.P., Florio, Dickerson and Belen, JJ., concur.