        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

281
CAF 12-00553
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF DANICA DAVIS,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JUSTIN K. BOND, RESPONDENT-APPELLANT.


DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Erie County (Rosalie
Bailey, J.), entered March 2, 2012 in a proceeding pursuant to Family
Court Act article 4. The order confirmed the order of the Support
Magistrate finding that respondent had willfully failed to obey a
court order.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Erie County, for further proceedings in
accordance with the following Memorandum: Petitioner mother commenced
this proceeding alleging that respondent father violated a February
2011 order (February order) requiring him to pay child support in the
amount of $155 per week. The Support Magistrate previously had issued
an order “on consent” in November 2011 (November order), setting forth
that the father admitted that he willfully violated the February order
and finding him in willful violation of the February order. The
Support Magistrate imposed a sentence of four months in jail but
suspended the sentence on the condition that the father did not miss
two consecutive support payments. The parties appeared before Family
Court in January, February and March 2012, based on what appears from
the record to be the father’s alleged failure to pay support pursuant
to the November order. On the date of the last appearance, in March
2012, the court dispensed with a hearing, took an oral admission of
nonpayment from the father’s attorney and, by the order on appeal,
“confirmed” the order of the Support Magistrate to the extent that the
Support Magistrate found the father to be in willful violation of the
February order. The court sentenced the father to four months in
jail.

     Although the court had the discretion to revoke the suspension of
the jail sentence, the court erred in doing so without first affording
the father “an opportunity to be heard and to present witnesses . . .
on the issue whether good cause existed to revoke the suspension of
the sentence” (Matter of Thompson v Thompson, 59 AD3d 1104, 1105,
quoting Family Ct Act § 433 [a] [internal quotation marks omitted];
                                 -2-                          281
                                                        CAF 12-00553

see Ontario County Dept. of Social Servs. v Hinckley, 226 AD2d 1126,
1126). “No specific form of a hearing is required, but at a minimum
the hearing must consist of an adducement of proof coupled with an
opportunity to rebut it” (Thompson, 59 AD3d at 1105 [internal
quotation marks omitted]). “ ‘[I]t is well settled that neither a
colloquy between a respondent and Family Court nor between a
respondent’s counsel and the court is sufficient to constitute the
required hearing’ ” (id.). Here, there was only the admission of
nonpayment by the father’s attorney, which was insufficient (see id.),
and there was no opportunity for the father to present evidence
rebutting the allegations against him. We therefore reverse the order
and remit the matter to Family Court for a hearing on the petition in
compliance with Family Court Act § 433.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
