| Matter of Madison County Support Collection Unit vFeketa |
| 2013 NY Slip Op 08310 [112 AD3d 1091] |
| December 12, 2013 |
| Appellate Division, Third Department |
| In the Matter of Madison County Support Collection Unit,on Behalf of Tammy Mahady, Petitioner, v John W. Feketa,Appellant. |
—[*1]
McCarthy, J. Appeal from an order of the Family Court of Madison County(McDermott, J.), entered October 31, 2012, which, in a proceeding pursuant to Family CtAct article 4, committed respondent to jail for 150 days.
In February 2011, the parties stipulated to an order confirming the SupportMagistrate's finding that respondent was in willful violation of his child supportobligation. Family Court determined that such willful violation constituted contempt ofcourt, but suspended any punishment until April 2011 to permit respondent to purge thecontempt. After respondent failed to do so, petitioner moved to vacate the suspendedjudgment and have the court impose a penalty for respondent's contempt. In October2012, respondent appeared by telephone from a correctional facility, waived his right tocounsel and admitted that he had not paid the arrears or newly-accrued support payments.Family Court found that respondent had not purged his contempt and imposed a sentenceof 150 days in jail, to be served after his release from incarceration on an unrelatedcriminal matter.[FN1] Respondent appeals.
Initially, to the extent that respondent challenges the finding of a willful violation,that issue is not properly before us as he did not use the proper method to challenge theFebruary [*2]2011 order establishing the willfulviolation, i.e., a motion to vacate that consent order (see Matter of Connor CC. [Jennifer DD.], 99 AD3d 1127,1127 [2012]). Nevertheless, because respondent was deprived of the right to counsel, wereverse. A person who is facing a contempt allegation for willful nonpayment of support,and could potentially be incarcerated for violation of a prior order, has the right toassistance of counsel (see Family Ct Act § 262 [a] [vi]; Matter of Sutton-Murley vO'Connor, 61 AD3d 1054, 1054 [2009]). A waiver of the right to counsel "mustbe explicit and intentional, and the court must assure that it is made knowingly,intelligently and voluntarily" (Matter of Clark v Clark, 101 AD3d 1394, 1395 [2012]).
At the October 2012 hearing, Family Court advised respondent of his right tocounsel, to assignment of counsel and to an adjournment to consult with counsel.Respondent initially said that he wanted to apply for assigned counsel, but then askedhow the process would work if he did not have counsel. The court stated that the matterwould proceed, and that the question was whether he challenged his failure to pay thearrears. Respondent then stated that he did not pay the arrears, prompting the court torespond that the only question was how much jail time would be imposed. Respondentthen stated that there was no need to waste more time and asked if he could continuewithout counsel. The court said, "You can if you want to," and respondent said that hewanted to. The court asked respondent three times if he was sure that he wanted to goforward without counsel, and he answered affirmatively. During the ensuing discussionof how much jail time would be appropriate, respondent raised paternity issues, hisinability to purge contempt while he was incarcerated and what would happen if he couldnot pay the arrears after serving his jail time. Each time, the court informed him thatthose issues were not presently before the court, and that the court could not give legaladvice so he would need to speak to counsel about those issues. After the court imposedsentence, respondent told the court to send him the forms to apply for assigned counsel,leading the court to respond that it was too late because he had already waived counseland been sentenced.
Family Court never conducted a searching inquiry to determine whether respondentunderstood the court process and was aware of the dangers of proceeding withoutcounsel (see Matter of Clark v Clark, 101 AD3d at 1395-1396; Matter of Broome County Dept. ofSocial Servs. v Basa, 56 AD3d 1092, 1093 [2008]). Such an inquiry typicallyincludes consideration of factors including the party's age, education, occupation andwork history, prior experience in the legal system and any other factors that may bear onthe validity of a waiver (see Matter of Clark v Clark, 101 AD3d at 1395; seealso People v Crampe , 17 NY3d 469, 482 [2011]; Matter of Kathleen K. [StevenK.], 17 NY3d 380, 385-386 [2011]). Here, the court did not ask respondent asingle question about any of these factors.[FN2] Respondent asked several questions indicating that he did not understand the nature orparameters of the proceeding, including raising several issues that Family Court notedwere not properly before the court at that time (see Matter of Clark v Clark, 101AD3d at 1395-1396). The court, however, despite apparently having already determinedthat respondent had waived the right to counsel, merely stated that respondent wouldneed to discuss those matters with counsel. Additionally, while the main question waswhether respondent had paid the arrears, counsel could have made arguments concerningwhy respondent had not made payments and his circumstances in mitigation or in supportof a lesser penalty. The [*3]court's explanation of theissue was oversimplified and, therefore, misleading. As respondent did not knowinglyand intelligently waive his right to counsel, and the court did not assure itself of thepropriety of respondent's waiver, we reverse and remit for a new hearing.
Respondent's remaining contentions are academic in light of our reversal. Stein andSpain, JJ., concur.
Lahtinen, J.P. (dissenting). Respectfully, we dissent and would affirm. Whendetermining whether an individual entitled to counsel has knowingly, voluntarily andintelligently waived that important right, the whole record is considered and reviewingcourts "have consistently refrained from creating a catechism for this inquiry,recognizing that it may occur in a nonformalistic, flexible manner" (People v Providence, 2 NY3d579, 580 [2004] [internal quotation marks and citation omitted]; see Matter of Mitchell WW.[Andrew WW.], 74 AD3d 1409, 1411 [2010]). Respondent faced civil contemptfor failing to pay child support. By the time the decision in the order on appeal wasrendered in October 2012, respondent had made five prior appearances in Family Courton this matter, as well as being convicted during such time of an unrelated criminalmatter. He was neither a novice to the justice system nor lacking in familiarity to FamilyCourt.
Family Court informed him at appearances in August 2010, December 2010 andMarch 2011 of his right to counsel, including the appointment of counsel if he could notafford one. He was also repeatedly informed that he faced up to six months in jail. Themultiple adjournments resulted, in part, from respondent's representation to Family Courtthat his contracting business was about to get paid, had received post-dated checks orwas about to land "a big job." In February 2011, respondent stipulated to an order findinghim in contempt, with two months to purge the contempt (which Family Court laterextended into the summer of 2011). The stipulated order provided that if he failed topurge himself, the matter would be scheduled for "imposition of a sentence." No motionwas made to vacate the stipulation nor was an appeal taken from the February 2011order. However, respondent made no additional child support payments, eventuallyresulting in the subject October 2012 hearing regarding a penalty.
During the course of the colloquy at the October 2012 hearing, Family Courtrepeatedly informed respondent of his right to counsel. The court told him that the matterwould be adjourned if he wanted counsel and that counsel would be appointed if hecould not afford one. Respondent was informed in detail of the nature of the proceedingand the fact that he could be sentenced to up to six months in jail. His questions wereaddressed and answered by the court. He indicated early in the colloquy that he wantedthe forms for assignment of counsel, but later unequivocally stated that he wanted toproceed without counsel. Thereafter, Family Court inquired three more times andreceived an affirmative response each time as to whether he was sure he wanted toproceed without counsel, including after again telling him that he could get up to sixmonths in jail and immediately before imposing the 150-day sentence (which alsopermitted him to purge himself at any time before completing his sentence by paying thechild support he owed). Respondent—an adult who purportedly ran his ownbusiness—had considerable recent experience in both criminal and civil legalmatters where he was entitled to counsel, he had repeatedly been informed of that right inthis matter, and he waived it in front of a judge before whom he had appeared manytimes and who had told him several times of the [*4]potential consequences he faced for his admitted civilcontempt. The totality of circumstances set forth in the whole record sufficiently reveal aknowing, intelligent and voluntary waiver of the right to counsel (see e.g. People vProvidence, 2 NY3d at 583; Matter of Bauer v Bost, 298 AD2d 648, 650[2002]). Egan Jr., J., concurs. Ordered that the order is reversed, on the law, withoutcosts, and matter remitted to the Family Court of Madison County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: This Court grantedrespondent a stay of Family Court's sentence pending appeal.
Footnote 2: Although respondentalso appeared without counsel at the February 2011 appearance, Family Court merelynoted that fact and proceeded. The court did not ask any questions concerning thesefactors or obtain a waiver of the right to counsel at that time.