| Matter of Thompson v Thompson |
| 2009 NY Slip Op 00944 [59 AD3d 1104] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Sarah B. Thompson, Respondent, v Marcus A.Thompson, Appellant. Ontario County, Respondent. |
—[*1] John W. Park, County Attorney, Canandaigua (Wendy R. Welch of counsel), forrespondent.
Appeal from an order of the Family Court, Ontario County (Frederick G. Reed, J.), enteredFebruary 15, 2008 in a proceeding pursuant to Family Court Act article 4. The order, inter alia,revoked the suspension of the jail sentence of respondent Marcus A. Thompson.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Family Court, Ontario County, for a hearing on thepetition in accordance with the following memorandum: Petitioner commenced this proceedingalleging that respondent-appellant (respondent) had violated a May 2007 order requiring him topay child support in the amount of $28 per month. In addition, the order suspended a six-monthjail sentence imposed based on respondent's prior willful failure to pay support. Respondent nowappeals from an order revoking the suspension of the jail sentence and remanding him to theOntario County jail. Although Family Court had the discretion to revoke the suspension of thejail sentence, the court erred in doing so without first affording respondent "an 'opportunity to beheard and to present witnesses' . . . on the issue whether good cause existed torevoke the suspension of the sentence" (Ontario County Dept. of Social Servs. vHinckley, 226 AD2d 1126 [1996], quoting Family Ct Act § 433 [a]; see Matter ofWolski v Carlson, 309 AD2d 759 [2003]). No specific form of a hearing is required, but at aminimum the hearing must " 'consist of an adducement of proof coupled with an opportunity torebut it' " (Ontario County Dept. of Social Servs., 226 AD2d 1126 [1996]). "[I]t is wellsettled that neither a colloquy between a respondent and Family Court nor between arespondent's counsel and the court is sufficient to constitute the required hearing" (Matter ofCommissioner of Chenango County Dept. of Social Servs. v Bondanza, 288 AD2d 773,773-774 [2001]; see Matter of Delaware County Dept. of Social Servs. v Manon, 119AD2d 940 [1986]). Contrary to the contention of respondent Ontario County, respondent did notwaive his right to a hearing pursuant to Family Court Act § 433. Waiver of the right to beheard in a meaningful manner must be " 'unequivocal, voluntary and intelligent' " (Matter of Jung [State Commn. on Jud.Conduct], 11 NY3d 365, 373 [2008]), and the request for an adjournment byrespondent's attorney cannot be considered a waiver of respondent's right to a hearing. Wetherefore reverse the order and remit the matter to Family Court for a hearing on the petition incompliance with Family Court Act § 433 before a different judge.Present—Scudder, P.J., Smith, Centra and Fahey, JJ.