| Matter of Gaitor v Morrissey |
| 2008 NY Slip Op 00010 [47 AD3d 975] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Donald E. Gaitor, Respondent, v Barbara R.Morrissey, Appellant. (And Six Other Related Proceedings.) |
—[*1] The Scagnelli Law Firm, P.C., Albany (Peter J. Scagnelli of counsel), for respondent. George V. Collins III, Law Guardian, Albany.
Peters, J. Appeal from an order of the Family Court of Albany County (Walsh, J.), enteredApril 25, 2006, which granted petitioner's application, in seven proceedings pursuant to FamilyCt Act articles 6 and 8, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) have one childtogether, Patrick (born in 1991). Pursuant to a December 2003 order of the Family Court ofAlbany County, the parties shared joint legal custody, with the father maintaining primaryphysical custody. On May 2, 2005, the father filed a violation petition alleging that the mothersigned the child out of school without reason. On that same day, the mother went to the FamilyCourt of Saratoga County and filed a violation petition, a family offense petition against thefather's wife and a petition for a change in custody. While these petitions were pending, themother removed the child from school and proceeded to abscond with him to New Mexico. Thechild contacted the father and hid in a public bathroom until he was retrieved by the police. Thisprompted three more filings by the father alleging a second violation, a family offense and arequest for modification of the custody order. The mother's visitation rights were temporarilysuspended, all outstanding petitions pending before the Saratoga County Family Court were[*2]transferred to Albany County, and the mother was grantedtemporary supervised visitation.
On April 13, 2006, all parties, their counsel and the Law Guardian appeared before FamilyCourt. First to be addressed was an application by the mother's attorney, at the direction of themother, requesting permission to withdraw as her counsel. Noting that the mother had relievedtwo prior assigned attorneys, the mother informed Family Court that she wished to proceed prose and have her attorney advise her as needed. Although she continued to request an adjournmentof the trial for the purpose of obtaining new counsel, Family Court noted how close the partieswere to a settlement. Without relieving the mother's attorney, extensive settlement discussionsensued between the parties, all counsel and the court. The mother's attorney sporadicallyparticipated through direct communication with Family Court and indirect advice to her client.When Family Court sought to discern whether the mother was, in fact, proceeding pro se with theassistance of counsel and whether the mother was content with the services that she had beenprovided, the mother clearly articulated that she was content with having the assistance ofcounsel during these negotiations; she agreed to have counsel relieved at the conclusion of thatconference. The stipulation of settlement was placed on the record with the consent of all partiesand counsel. The mother appeals.
The mother's claim that she was denied her right to counsel has no merit. Her decision tofully participate in the settlement negotiations, with the limited role she devised for her attorney,reveals that she entered into these negotiations knowingly, voluntarily and intelligently waivingthe typical attorney-client relationship (see Matter of Hassig v Hassig, 34 AD3d 1089, 1091 [2006];Matter of Bauer v Bost, 298 AD2d 648, 650 [2002]). Any further claim that she receivedineffective assistance of counsel is belied by the record when we view, in their totality, theextensive colloquy that she had with Family Court and her counsel who advised and advocatedon her behalf (see Matter of AshleyL., 22 AD3d 915, 917 [2005]).
As to the stipulation of settlement, entered on the record in open court, modifying the termsof the December 2003 order of custody, it will not lightly be set aside unless "fraud, collusion,mistake or accident is established" (Matter of Rose BB., 300 AD2d 868, 869 [2002]; see Curcio v Watervliet City SchoolDist., 21 AD3d 666, 667 [2005], lv denied 5 NY3d 715 [2005]; Stefanovichv Boisvert, 271 AD2d 727, 728 [2000]). Here, the mother actively participated in crafting thespecifics of that order by negotiating the inclusion of additional terms such as her access toschool and medical records, her right to participate in major medical decisions, the father'smandated participation in counseling, a new location for the exchange of their child and a grantof authority to her therapist to determine when her supervised visitations could end, therebyprogressing to the unsupervised provisions in the prior order. It is this last provision which mustbe set aside since Family Court improperly delegated its responsibility to determine when themother's visitation may be modified (see Matter of Battista v Battista, 294 AD2d 941,941 [2002]; see also Matter ofCovington v Coleman, 34 AD3d 1107, 1108 [2006]; Matter of William BB. v Susan DD., 31 AD3d 907, 908 [2006]; Matter of St. Pierre v Burrows, 14AD3d 889, 890-891 [2005]; Matterof Henderson v Henderson, 9 AD3d 569, 569 [2004]; compare Matter of Laeyt vLaeyt, 268 AD2d 815, 816 [2000]). As to the remaining provisions, we find no "fraud,collusion, mistake or accident" (Matter of Rose BB., 300 AD2d at 869; see Matter of Sloand v Sloand, 30AD3d 784, 787 [2006]).
Cardona, P.J., Spain, Rose and Kane, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as delegated to the therapist the authority tomodify respondent's access to the child; matter remitted to the Family Court of Albany Countyfor further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.