| Matter of Keenan v Keenan |
| 2008 NY Slip Op 04012 [51 AD3d 1075] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Lisa Keenan, Respondent, v Jude J. Keenan,Appellant. |
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Stein, J. Appeals from three orders of the Family Court of Ulster County (Mizel, J.), enteredMay 2, 2007, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior order ofsupport and committed respondent to the Ulster County jail for a term of three months.
Respondent was required by court order to pay petitioner $250 per week as child support forthe parties' three children effective January 20, 2006. Thereafter, petitioner commenced thisproceeding alleging a willful violation of the support order. At his initial appearance, respondentinformed the Support Magistrate (Beisel, S.M.) that he did not want to represent himself and thathe needed assigned counsel. The Support Magistrate informed respondent that a public defenderapplication would be mailed to him and that he should return it to the court immediately becausea trial would be conducted within 30 days. When the proceedings resumed, respondent assertedthat he had not received any papers in the mail regarding applying for a lawyer. The SupportMagistrate indicated that the public defender application had been mailed to respondentapproximately one month earlier, and that he was not permitted to adjourn the case more thanonce in order for respondent to obtain an attorney; he then proceeded with the hearing.
Based upon the testimony adduced at the hearing, the Support Magistrate then set childsupport arrears at $8,750, found that respondent had failed to present an excuse for his failure topay and recommended a six-month period of incarceration to be suspended conditioned uponpayment of the arrears and keeping the child support payments current. Before adjourning thematter for a confirmation hearing before Family Court, the Support Magistrate stated that he[*2]would send respondent another public defender applicationand instructed respondent to return it immediately.
When Family Court called respondent a few weeks later, he indicated that he had not beennotified of a proceeding that day, that he had not received a copy of the Support Magistrate'sorder and that he wished to apply for assigned counsel. Family Court advised respondent that thecourt would send him a financial affidavit and a copy of the Support Magistrate's order and"strongly recommend[ed] that [he] make sure [he] speak[s] with counsel."
Respondent was assigned counsel on April 30, 2007. The notice of assignment of counselindicates that the matter had been scheduled for the following day for the purpose of "WarrantReview." On May 1, 2007, Family Court conducted a willfulness hearing, with respondent'sassigned counsel present and respondent appearing by telephone (as he resided out of state).Respondent's counsel emphasized that he had been assigned the previous day and that he hadonly had a brief conversation with respondent, as the notice of his assignment indicated that thematter was on for warrant review. Counsel further indicated that respondent did not have theability to pay the arrears, but that he did not have any documentation to support his position.Nevertheless, the court confirmed the willfulness finding of the Support Magistrate and issuedthree orders, namely a money judgment against respondent in favor of the Ulster CountyDepartment of Social Services in the amount of $1,000, a willfulness determination order and anorder committing respondent to the Ulster County jail for three months. Respondent now appealsfrom these three orders. We reverse.
Family Court effectively deprived respondent of his right to counsel. A person has the rightto the assistance of counsel "in any proceeding before the court in which an order or otherdetermination is being sought to hold such person in contempt of the court or in willful violationof a previous order of the court" (Family Ct Act § 262 [a] [vi]; see Family Ct Act§ 261).
"Trial courts have considerable discretion whether to adjourn a matter. That discretion is not,however, without limits, particularly when the right to counsel is implicated" (Matter of Stephen L., 2 AD3d1229, 1231 [2003] [citations omitted]; see Matter of Sullivan v Sullivan, 24 AD3d 455, 456 [2005]). Here,the Support Magistrate could have granted respondent a second adjournment to obtain counselupon a showing of good cause (see 22 NYCRR 205.43 [c], [d] [3]), but erroneouslybelieved that he could not do so. The Support Magistrate improvidently exercised his discretionin refusing to grant a further adjournment, as this was not a case where there had been repeatedadjournments, respondent alleged that he had not received the public defender application and, infact, there was some testimony that respondent was having difficulty getting his mail (seeMatter of Sullivan v Sullivan, 24 AD3d at 456; Matter of Brunelle v Bibeau, 18 AD3d 927, 929 [2005]; Matterof Stephen L., 2 AD3d at 1231). Thus, respondent's right to counsel in the hearing before theSupport Magistrate was violated (see Matter of Wilson v Bennett, 282 AD2d 933, 935[2001]; see generally Matter ofAnderson v Hailey, 13 AD3d 911, 912 [2004]).
Family Court's subsequent assignment of counsel did not cure the violation. "The right ofcounsel implies that the court will give a respondent and his [or her] counsel a reasonableopportunity to appear and present evidence and arguments" (Matter of DeMarco vRaftery, 242 AD2d 625, 626 [1997] [citation omitted]). It cannot be said that respondent hadsuch an opportunity where, as here, respondent's counsel was assigned only one day before thehearing date, had no notice that the court would be conducting a willfulness hearing on that dateand [*3]consulted only briefly with respondent. Although FamilyCourt took some testimony regarding respondent's alleged inability to comply with his supportobligations, respondent claimed to have documentary evidence of disputed payments whichmight have been presented to the Support Magistrate and/or to Family Court on the respectivehearing dates if respondent had been properly advised and prepared by counsel. Similarly,counsel may have been better able to present respondent's testimony and to cross-examinepetitioner if he had sufficient time to consult with respondent. Thus, notwithstandingrespondent's apparent concession that he did not make all of the required support payments andcredibility issues concerning his excuse for failing to do so, given the liberty interest involved, anew hearing is required (see Matter of Brunelle v Bibeau, 18 AD3d at 929; Matter of Lee v Stark, 1 AD3d815, 816 [2003]; Matter of Wilson v Bennett, 282 AD2d at 934-935).
Mercure, J.P., Peters, Kane and Kavanagh, JJ., concur. Ordered that the orders are reversed,on the law, without costs, and matter remitted to the Family Court of Ulster County for furtherproceedings not inconsistent with this Court's decision.