| Matter of DeVries v DeVries |
| 2009 NY Slip Op 01218 [59 AD3d 619] |
| February 17, 2009 |
| Appellate Division, Second Department |
| In the Matter of Krista DeVries, Respondent, v MichaelDeVries, Appellant. |
—[*1] Vergilis Stenger Roberts & Davis, LLP, Wappingers Falls, N.Y. (Karen P. MacNish ofcounsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals (1),as limited by his brief, from so much of an order of the Family Court, Orange County (Bivona,J.), dated October 15, 2007, as, after a hearing, upon a finding that he was in contempt for failureto comply with the terms of an amended judgment dated January 24, 2007, and committing himto the Orange County Jail for a period of 30 days, and upon conditioning the suspension of hiscommitment on his remaining current in his child support and maintenance obligations in thefuture, in effect, directed the automatic revocation of the suspension of his commitment, withouta hearing, upon his failure to abide by that condition in the future, (2) from a money judgment ofthe same court, also dated October 15, 2007, in favor of the mother and against him in theprincipal sum of $43,886.47, and (3) from an order of the same court dated April 17, 2008,which denied his motion to vacate the order dated October 15, 2007, and for a new hearing onthe issue of contempt on the ground that he was denied the effective assistance of counsel.
Ordered that the order dated October 15, 2007, is reversed insofar as appealed from, on thelaw, without costs or disbursements; and it is further,
Ordered that the appeal from the money judgment is dismissed as abandoned, without costsor disbursements; and it is further,[*2]
Ordered that the appeal from so much of the order datedApril 17, 2008, as denied that branch of the father's motion which was to vacate the order datedOctober 15, 2007, is dismissed as academic in light of our determination of the appeal from theorder dated October 15, 2007; and it is further,
Ordered that the order dated April 17, 2008, is affirmed insofar as reviewed, without costs ordisbursements.
Although the Family Court has the discretion to suspend an order of commitment upon thecondition of continued compliance with a prior order of support (see Family Ct Act§ 455 [1]; Matter of Russo v Goldbaum, 215 AD2d 763 [1995]), the Family Courtmay not direct that the suspension be automatically revoked without notice and without a hearingupon failure to abide by the condition (see Matter of Wolski v Carlson, 309 AD2d 759[2003]; Matter of Rogers v Rogers, 77 AD2d 818 [1980]; Matter of Bailey vBailey, 34 AD2d 984 [1970]).
The Family Court did not err in denying that branch of the father's motion which was for anew hearing based upon the alleged ineffective assistance of counsel at the contempt hearing.Counsel was authorized to practice law at the time of his representation of the father at thecontempt hearing. Counsel's resignation from the practice of law was not accepted by theAppellate Division and not effective until months after the hearing. Pursuant to 22 NYCRR691.10, counsel's representation was permissible.
The father's remaining contentions are without merit. Rivera, J.P., Angiolillo, Carni andMcCarthy, JJ., concur.