Dietz v. Dietz

In a support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Family Court, Suffolk County (Spinner, J.), dated January 27, 2003, as, upon directing that he be incarcerated for contempt of court, set a purge amount of $1,370, and imposed an incarceration cost of $197 per day upon him.

Ordered that the order and judgment is modified, on the law, by deleting the provision thereof imposing an incarceration cost of $197 upon the father; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

Upon proof that the father wilfully failed to obey the lawful *436order of the Family Court to post an undertaking, the Family Court properly adjudged him in contempt, and included in the purge amount, in addition to arrears owed, the amount of the undertaking (see Family Ct Act §§ 471, 454). However, the imposition of an incarceration cost of $197 upon the father must be vacated (see Matter of Suffolk County Dept, of Social Sews. [Matthew] v Harry, 306 AD2d 490 [2003]; Matter of Moron v Moron, 306 AD2d 349 [2003]; Matter of DeMarco v Newton, 305 AD2d 501 [2003]). Santucci, J.E, Luciano, Schmidt and Adams, JJ., concur.