| Matter of Templeton v Templeton |
| 2010 NY Slip Op 04895 [74 AD3d 1513] |
| June 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Karen M. Templeton, Respondent, v Jeffrey C.Templeton, Appellant. |
—[*1] Elena Jaffe Tastensen, Saratoga Springs, for respondent.
Lahtinen, J. Appeals (1) from an order of the Family Court of Ulster County (Mizel, J.),entered July 1, 2009, 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 supportorder, and (2) from the judgment entered thereon.
Respondent (hereinafter the father) allegedly sustained injuries in a car accident in May 2008and, shortly thereafter, ceased making child support payments and sought downwardmodification of his child support obligation claiming that he was unable to work. Petitioner(hereinafter the mother) commenced an enforcement proceeding. A Support Magistrate foundthe father in willful violation and assessed arrears. Following a hearing before Family Court, thecourt did not find credible the father's contention that he could not work because of injuriesrelated to the car accident. Family Court ordered, among other things, that the father reimbursethe mother pursuant to Judiciary Law § 773 for costs she had incurred in pursuing theviolation, including her expense for private investigators as well as her lost wages and travelexpenses to attend the hearing. The order was reduced to a judgment and the father now appealsfrom the order and judgment.
We consider first the father's contention that he did not receive the effective assistance ofcounsel. To succeed on his claim, he must demonstrate that, viewed in its entirety, his counsel[*2]did not provide meaningful representation (see Matter of Hurlburt v Behr, 70AD3d 1266, 1267 [2010]; Matter of Martin v Martin, 46 AD3d 1243, 1246 [2007]).Here, it is undisputed that the father received injuries in a car accident, and his sole defense tothe willful violation proceeding was that he was unable to work because of the extent of hisinjuries. His counsel, despite repeated attempts, failed to procure certified medical records,which were apparently extensive. Hence, the father's medical records were not received intoevidence and no other competent proof was presented regarding the father's medical condition.Family Court found the lack of such proof fatal to the father's defense. Under thesecircumstances, we find merit to the father's ineffective assistance of counsel claim (seeMatter of Martin v Martin, 46 AD3d at 1246).
Although this renders academic the father's further contention regarding the penalty, we notethat, in the event a willful violation is found following a new hearing, the specific remedies for aviolation of a support order are set forth in Family Ct Act § 454 (see Family CtAct § 156; Matter of Edwin G., 296 AD2d 7, 10 [2002]; but see Matter of Williams v Johnson,56 AD3d 1021, 1022-1023 [2008]).
Spain, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the order and judgment arereversed, on the law, without costs, and matter remitted to the Family Court of Ulster County forfurther proceedings not inconsistent with this Court's decision.