| Matter of Scott v Scott |
| 2009 NY Slip Op 03738 [62 AD3d 714] |
| May 5, 2009 |
| Appellate Division, Second Department |
| In the Matter of Elizabeth Scott, Respondent, v CedricScott, Appellant. |
—[*1]
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from(1) an order of the Family Court, Westchester County (Klein, J.), dated December 12, 2008,which confirmed an order of the same court (Thompson, S.M.), dated July 9, 2008, made after ahearing, inter alia, finding that he willfully violated a prior order of support and recommendingthat he be incarcerated for a period of six months, and (2) an order of commitment of the samecourt (Klein, J.), also dated December 12, 2008, which, upon the order dated December 12,2008, committed him to the Westchester County jail for a term of six months unless he paid thesum of $10,000.
Ordered that the order dated December 12, 2008 and the order of commitment are reversed,on the law, without costs or disbursements, and the matter is remitted to the Family Court,Westchester County for further proceedings in accordance herewith.
On July 1, 2008, after the mother's enforcement and violation petition had been pending formore than 1½ years, the father was detained on a warrant and appeared withnewly-assigned counsel. The following day, the court acceded to the mother's request that thewillfulness hearing be held quickly and set July 9, 2008 as the date for the hearing. At the sametime, assigned counsel for the father stated that he would be unable to represent him due toscheduling conflicts and that at the next court date new counsel would have to be assigned. Onthe scheduled date, the father was assigned new counsel, who twice on the record requested anadjournment in order to investigate whether his client had been served with the [*2]parties' judgment of divorce, which gave him notice of hisobligation to pay support, and to secure medical evidence in support of his contention that hewas disabled and thus unable to pay support. The Support Magistrate denied both requests. Atthe conclusion of the hearing, the Support Magistrate found that the father had willfully failed tocomply with his obligation to pay support and recommended that he be incarcerated for a periodof six months. The Family Court Judge confirmed the Support Magistrate's determination andcommitted the father to six months incarceration unless he purged himself of his contempt bypaying $10,000 toward arrears.
A person who faces the possibility of imprisonment stemming from the willful violation of aprevious order of the court has the right to the assistance of counsel (see Family Ct Act§ 262 [a] [vi]; Matter of Keenan vKeenan, 51 AD3d 1075, 1077 [2008]). The right to counsel implies that the court willafford a respondent and his or her attorney a reasonable opportunity to appear and presentevidence and arguments (see Matter of Keenan v Keenan, 51 AD3d at 1077; Matterof DeMarco v Raftery, 242 AD2d 625, 626 [1997]). While the decision whether to grant anadjournment is ordinarily committed to the sound discretion of the trial court, that discretion ismore circumscribed when fundamental rights such as the right to counsel are implicated (seeFamily Ct Act § 435 [a]; People v Spears, 64 NY2d 698, 700 [1984];Matter of Keenan v Keenan, 51 AD3d at 1077; Matter of Sullivan v Sullivan, 24 AD3d 455, 456 [2005]).
Here, the Support Magistrate abused her discretion in twice denying the request of thefather's newly-assigned counsel for an adjournment. Counsel needed an opportunity to conferwith his client before he testified, investigate service of the judgment of divorce, and securemedical evidence in support of the father's defense that he was disabled and thus unable to paysupport. Accordingly, the father was denied his right to counsel and a new hearing must be heldand a new determination made (see Matter of Keenan v Keenan, 51 AD3d at 1077; Matter of Vazana v Vazana, 32 AD3d478 [2006]).
The father's remaining contentions are without merit. Mastro, J.P., Skelos, Dickerson andLott, JJ., concur.