| Matter of Hohenforst v DeMagistris |
| 2007 NY Slip Op 07784 [44 AD3d 1114] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Wendy Hohenforst, Formerly Known as WendyDeMagistris, Respondent, v Thomas DeMagistris, Appellant. (And Two OtherRelated Proceedings.) |
—[*1] Livingston L. Hatch, Plattsburgh, for respondent. Ian R. Arcus, Law Guardian, Albany.
Peters, J. Appeal from an order of the Family Court of Fulton County (Jung, J.), enteredSeptember 28, 2005, which, in three proceedings pursuant to Family Ct Act articles 6 and 8,denied respondent's motion to vacate a default judgment entered against him.
Petitioner and respondent are the parents of two children (born in 1989 and 1992). Prior totheir divorce in June 2004, petitioner was granted temporary legal and physical custody of thechildren and a temporary order of protection was issued against respondent. In September 2004,petitioner sought sole legal and physical custody of the children by alleging, among other things,that respondent violated the temporary order of protection. Shortly thereafter, petitioner filed aseparate violation petition, later amended to allege, among other things, that respondent made[*2]threats towards her and her family in violation of thetemporary order of protection. For that reason, she further sought a permanent order ofprotection. Respondent filed two family offense petitions.
Only hours before a March 3, 2005 proceeding concerning all of these petitions, respondentallegedly verbally threatened petitioner's counsel in the hallway of Family Court. Uponoverhearing such threats, a court officer arrested respondent and placed him in a holding centerdown the hall. At the hearing before Family Court, respondent's counsel, petitioner and hercounsel, as well as the Law Guardian, appeared. After Family Court reviewed the circumstancesunderlying respondent's arrest that morning, his counsel moved to withdraw his representationwithout indicating to the court that he had informed respondent of his intent to do so. With noobjection by either petitioner's counsel or the Law Guardian, Family Court granted such motion.Petitioner's counsel also moved to be relieved. After ensuring that petitioner did not object to hercounsel's withdrawal and that she wanted to go forward with the proceeding, Family Courtgranted that motion.
The Law Guardian successfully moved to dismiss the petitions filed by respondent, withprejudice, for a failure to prosecute. As to the remaining petitions, a brief inquest was heldwherein the Law Guardian merely confirmed with petitioner that "all [of] the allegationscontained in [the] petition [were] true." The Law Guardian thereafter referenced a previouslystipulated forensic evaluation of the parties to support her recommendation that petitioner begranted sole legal and physical custody, with no visitation to respondent. With respect to theviolation petitions, the Law Guardian requested a "stay away" order of protection for three yearsand that respondent be found in willful violation, warranting a sentence of 180 days for eachviolation. A warrant and order of commitment was then issued by Family Court. A subsequentcustody order, prepared by the Law Guardian, found respondent in default, mirroring the custodyposition as well as the resolution of the violation petitions made by the Law Guardian.[FN1]
In September 2005, respondent filed a motion, upon his attorney's affirmation, seeking tovacate the default judgment and the recusal of Judge Jung from all further proceedings. Bydecision and order entered September 28, 2005, Family Court denied the recusal motion as wellas respondent's motion to vacate upon a finding that the proffer failed to set forth a meritoriousdefense to the petitions.[FN2]Respondent appeals and we reverse.[*3]
"A party seeking to vacate a default judgment mustestablish both a reasonable excuse for the default and a meritorious defense to the underlyingclaim" (Trim v Trim, 21 AD3d1203, 1204 [2005] [citations omitted]; see Matter of Taylor v Staples, 33 AD3d 1089, 1090 [2006], lvdismissed and denied 8 NY3d 830 [2007]), but such a showing is not necessary where, ashere, there was never a genuine default and there was a denial of a party's fundamental right todue process (see Matter of Cleveland W., 256 AD2d 1151, 1152 [1998]; Matter ofJames R., 238 AD2d 962, 962-963 [1997]).
An attorney of record may withdraw as counsel only upon notice to his or her client(see CPLR 321 [b] [2]; Matter of Dunn [Brackett], 205 NY 398, 403 [1912]; Birky v Katsilogiannis, 37 AD3d631, 632 [2007]; Matter of Kindra B., 296 AD2d 456, 458 [2002]; Matter ofWilliams v Lewis, 258 AD2d 974, 974 [1999]). Here, there is no indication that respondent'scounsel ever informed him, prior or during his incarceration in Family Court, that he was seekingto withdraw as counsel. "A purported withdrawal without proof that reasonable notice was givenis ineffective" (Matter of Williams v Lewis, 258 AD2d at 974 [citations omitted]; seeMatter of Meko M., 272 AD2d 953, 954 [2000]) and a default judgment entered thereon hasbeen deemed improper (see Matter of Williams v Lewis, 258 AD2d at 974; compareMatter of Hermann v Chakurmanian, 243 AD2d 1003, 1004 [1997]). The absence ofevidence that respondent was put on notice of his counsel's intent to withdraw his representationin accordance with the mandates of CPLR 321 (b) (2) rendered Family Court's determination thatrespondent was in "default" improper. When Family Court then conducted an inquest, ultimatelyawarding custody to petitioner and an order of contempt against respondent, respondent wasfurther denied his statutory right to counsel (see Family Ct Act § 262 [a]). Whilewe recognize that a party may waive such a right by a knowing, willing and voluntary waiver (see Matter of Hassig v Hassig, 34AD3d 1089, 1091 [2006]; Matter of Bauer v Bost, 298 AD2d 648, 650 [2002]), nowaiver occurred here. "[E]ven an incarcerated parent has a right to be heard on mattersconcerning [his] child, where there is neither a willful refusal to appear nor a waiver ofappearance" (Matter of Tristram K.,25 AD3d 222, 226 [2005]; see Matter of Kendra M., 175 AD2d 657, 658 [1991]).Family Court was required to advise respondent of his statutory right to counsel beforeproceeding to the merits of these petitions (see Matter of Hassig v Hassig, 34 AD3d at1091; Matter of Frierson vGoldston, 9 AD3d 612, 614 [2004]); its failure to do so constituted a fundamentaldepravation of his rights to due process (see Matter of Williams v Bentley, 26 AD3d 441, 442 [2006];Matter of Wilson v Bennett, 282 AD2d 933, 934 [2001]). The order must therefore bereversed and the matter remitted for a new hearing on all petitions before a different judge (see Matter of Williams v Williams, 35AD3d 1098, 1100 [2006]). In the interim, temporary physical and legal custody of thechildren will remain with petitioner.
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is reversed, onthe law, without costs, motion granted, default judgment vacated and matter remitted to theFamily Court of Fulton County for further proceedings not inconsistent with this Court'sdecision.
Footnote 1: Although not part of the recordon appeal, respondent commenced a proceeding for a writ of habeas corpus in August 2005,challenging the legality of the warrant and orders of commitment issued by Family Court.Supreme Court (Sise, J.) granted the petition, immediately released respondent and, according torespondent, ordered him to file a motion to vacate the default judgment entered by Family Court.
Footnote 2: Nearly a year after his filing ofhis notice of appeal, respondent moved, pursuant to CPLR 2221 (e), to renew his motion tovacate the default judgment and requested that Judge Jung recuse himself. That motion wasdenied.