| Matter of Bader v Hazzis |
| 2010 NY Slip Op 07335 [77 AD3d 742] |
| October 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Donna M. Bader, Respondent, v Dean C.Hazzis, Appellant. |
—[*1] Robert N. Nelson, Baldwin, N.Y. (Kimberly I. Nelson of counsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from (1)findings of fact of the Family Court, Nassau County (Watson, S.M.), dated October 23, 2009, madeafter a hearing, inter alia, finding that he willfully violated the support provisions of the parties' separationagreement, and (2) an order of commitment of the same court (Bennett, J.), dated February 5, 2010,which, upon confirming the findings of fact, committed him to the Nassau County Correctional Facilityfor a period of 90 days with the opportunity to purge his contempt by payment of the sum of $16,000to the mother. By decision and order on motion dated March 11, 2010, this Court granted the father'smotion to stay enforcement of the order dated February 5, 2010, pending hearing and determination ofthe appeal.
Ordered that the appeal from the findings of fact is dismissed, without costs or disbursements, asno appeal lies from findings of fact (see Family Ct Act § 1112; see also Schicchi vJ.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order of commitment is reversed, without costs or disbursements, and the matteris remitted to the Family Court, Nassau County, for further proceedings in accordance herewith.
After a hearing held before a Support Magistrate, during which the father was represented bycounsel, the father was found to be in willful violation of the support provisions of the parties' separationagreement. As a result of her findings, the Support Magistrate recommended 30 days' incarceration andreferred the matter to a Family Court Judge for further proceedings.
During proceedings held before the Family Court Judge the same day, at which the father wasagain represented by counsel, the Family Court continued the matter to allow the father the opportunityto avoid incarceration by paying his arrears. At subsequent appearances before the Family Court,however, the father was not represented by counsel. At the final appearance before entry of an order ofcommitment, the father indicated that he did not have funds to retain counsel and expressed his desirefor appointed counsel. Nevertheless, the Family Court did not make inquiry into the father's eligibilityfor appointed counsel, but instead proceeded directly to the question of whether [*2]the father had complied with agreements regarding his arrears andwhether an order of commitment should be entered. At the conclusion of that proceeding, the FamilyCourt confirmed the Support Magistrate's finding of willfulness, and committed the father to the NassauCounty Correctional Facility for a period of 90 days.
The evidence before the Support Magistrate, including the father's own admissions, established,prima facie, his willful violation of the support provisions of the parties' separation agreement (seeMatter of Powers v Powers, 86 NY2d 63, 69-70 [1995]; Matter of Probert v Probert, 67 AD3d 806, 807 [2009]; Matter of Greene-Tyus v Tyus, 61 AD3d758 [2009]; Matter of Rosato vRosato, 21 AD3d 418 [2005]). This prima facie showing shifted the burden to the father tocome forward with competent, credible evidence that his failure to pay support in accordance with theterms of the parties' separation agreement was not willful (see Matter of Powers v Powers, 86NY2d at 69-70; Matter of Probert v Probert, 67 AD3d at 807; Matter of Greene-Tyus vTyus, 61 AD3d at 758). Since the father he failed to do so, the Family Court properly confirmedthe Support Magistrate's finding that the father willfully violated the support provisions of the parties'separation agreement (see Matter ofSchlakman v Schlakman, 66 AD3d 786, 787 [2009]; Matter of Awwad v Awwad, 62 AD3d 695 [2009]; Matter of Solis v Marmolejos, 50 AD3d691, 692 [2008]; Matter of Donato vDonato, 43 AD3d 920, 921 [2007]; Matter of Muselevichus v Muselevichus, 40 AD3d 997, 998-999[2007]; Matter of Falk v Owen, 29AD3d 991, 991-992 [2006]; Matter of Austein-Gillman v Gillman, 292 AD2d 524[2002]; Matter of Doyle v Doyle, 230 AD2d 795, 796 [1996]; Matter of Ciostek vCiostek, 186 AD2d 1087 [1992]).
"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" (Matter of Scott v Scott, 62 AD3d 714,715 [2009]). Waiver of the right to counsel must be founded on an explicit and intentionalrelinquishment which is supported by knowledge and a clear understanding of the right (see Matter of Samuel v Samuel, 33 AD3d1010, 1011 [2006]; Matter of Williams v Williams, 91 AD2d 1044, 1045 [1983];Matter of Brainard v Brainard, 88 AD2d 996 [1982]; compare Matter of Dorner vMcCarroll, 271 AD2d 530 [2000]). Where a party indicates an inability to retain private counsel,the court must make inquiry to determine whether the party is eligible for court-appointed counsel (see Clemens v Clemens, 29 AD3d 932[2006]; Gifford v Gifford, 223 AD2d 669, 670 [1996]; Matter of Williams v Williams,91 AD2d at 1045).
Here, the following colloquy took place at the outset of the final day of the continued proceedingsbefore the Family Court:
"court: Mr. Hazzis, you have the right to an attorney. I see in the past you were represented by[counsel]. Do you have an attorney or are you waiving your right to counsel?
"father: I don't have an attorney at this time. I can't afford one.
"court: Okay. Are you waiving your right to an attorney or are you asking that the Court assign oneto you?
"father: Well, if the Court could assign one to me, that would be great . . .
"court: How much do you earn?
"father: Right now, I'm not earning anything."
Despite the father's clear request for counsel and his statements indicating that he might indeed beeligible for appointed counsel, the Family Court ignored the father's request and proceeded withoutfurther inquiry. Under the circumstances of this case, the order of commitment must be reversed and thematter remitted to the Family Court, Nassau County, for further proceedings. During thoseproceedings, the father is to be fully advised of his right to counsel, and his right to appointed counsel isto be adequately explored, with counsel to be provided if appropriate. The Family Court shall thenmake a new determination of the sanction to be imposed as a result of its confirmation of the SupportMagistrate's finding of willful violation of the support provisions of the parties' separation agreement(see Clemens v Clemens, 29 AD3d at 932; Gifford v Gifford, 223 AD2d at 670;Matter of Williams v Williams, 91 AD2d at 1045).
In light of the foregoing, we need not reach the father's remaining contention. Fisher, J.P., Dillon,Florio and Lott, JJ., concur.