CHILD SUPPORT AND INCARCERATION

There are limits to the court's power.

Matter of Augliera v Araujo, 2020 NY Slip Op 03510, Decided on June 24, 2020 ,Appellate Division, Second Department:

"We agree with the Family Court's determination in an order of disposition dated May 31, 2019 (hereinafter the May 2019 order), after a hearing on May 8, 2019, that the father willfully violated an order of child support dated December 21, 2015. At the hearing, the mother demonstrated that the father willfully violated his support obligations set forth in the child support order (see Family Ct Act § 454[3][a]; Matter of Martinez v Martinez, 44 AD3d 945, 946). In opposition, the father failed to show an inability to pay the support owed (see Matter of Martinez v Martinez, 44 AD3d at 946).

We disagree, however, 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]; Matter of Cox v Cox, 133 AD2d 828), such incarceration may only continue until the offender complies with the support order (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d 568, 568-569). 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 (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d at 568-569). Accordingly, since the court imposed a sentence of incarceration in contravention of Judiciary Law § 774(1), that provision of the May 2019 order must be deleted."