| Matter of Munoz v Edmonds-Munoz |
| 2014 NY Slip Op 09000 [123 AD3d 1038] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Maurice Munoz,Respondent, v Dina Edmonds-Munoz, Appellant. |
Amy Mulzer, Brooklyn, N.Y., for appellant.
Frank M. Galchus, Fresh Meadows, N.Y., for respondent.
Stewart N. Altman, Mineola, N.Y., attorney for the child.
Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.),dated October 18, 2013. The order, inter alia, granted so much of the father's petition aswas for sole custody of the child Ivana M.
Ordered that the appeal from so much of the order as granted the father's petition forsole custody of the child Ivana M. is dismissed, without costs or disbursements; and it isfurther,
Ordered that the order is affirmed insofar as reviewed, without costs ordisbursements.
The parties are the parents of two children. In a judgment of divorce dated August13, 2002, the mother was awarded custody of both children. On or about June 8, 2012,the father petitioned for, inter alia, sole custody of the child Ivana M. Before a hearingwas held on the father's petition, the Family Court issued several orders grantingtemporary custody of Ivana M. to the father, and visitation to the mother.
The mother failed to appear for the hearing on the father's petition and did not moveto vacate her default. Where an order is made upon the appellant's default and no motionis made to vacate the default, " 'review is limited to matters which were thesubject of contest below' " (Matter of Ca'leb R.D. [Mary D.S.], 121 AD3d 890, 891[2014], quoting Matter ofConstance P. v Avraam G., 27 AD3d 754, 755 [2006]; see James vPowell, 19 NY2d 249, 256 [1967]; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907[2013]). Consequently, the mother may not appeal from the merits of the custodydetermination (see CPLR 5511; Matter of Li Wong v Fen Liu, 121 AD3d 692 [2014]; Matter of Aidiles Noelia A., 48AD3d 676 [2008]).
This Court may review the mother's contention that the Family Court erred in itspre-hearing denial of her request for new assigned counsel (see Matter of Ca'leb R.D. [MaryD.S.], 121 AD3d 890 [2014]; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907, 908[2013]; Matter of Paulino vCamacho, 36 AD3d 821, 822 [2007]). However, the Family Court did notimprovidently exercise its discretion in [*2]denying themother's request for new assigned counsel. This was her fifth such request. The FamilyCourt had entertained, and granted, four previous requests to assign counsel to themother. Nor did the court err in denying the mother's request to adjourn the hearing andappointing her former assigned attorney as stand-by counsel. While an indigent party hasa right to assigned counsel in a Family Court custody proceeding, " 'thisentitlement does not encompass the right to counsel of one's own choosing' " (Matter of Wiley vMusabyemariya, 118 AD3d 898, 900 [2014], quoting People v Porto, 16 NY3d93, 99 [2010]; see People v Sides, 75 NY2d 822, 824 [1990]). An indigentparty is entitled to new assigned counsel only upon a showing of good cause for asubstitution (see People v Sides, 75 NY2d at 824; Matter of Wiley vMusabyemariya, 118 AD3d at 900). Under the circumstances presented here, theFamily Court did not improvidently exercise its discretion in denying the mother'sapplication for substitution of counsel or for an adjournment of the hearing (seeMatter of Wiley v Musabyemariya, 118 AD3d at 900; see also Matter of Moore vMcClenos, 259 AD2d 752, 753 [1999]).
The mother argues that the Family Court erred in failing to include in its custodyorder a provision for visitation. As a general rule, absent extraordinary circumstances, anoncustodial parent is entitled to reasonable visitation privileges (see Matter of Zwillman v Kull,90 AD3d 774, 775 [2011]; Pollack v Pollack, 56 AD3d 637, 638-639 [2008]; Cervera v Bressler, 50 AD3d837, 839 [2008]). However, since the mother failed to appear at the hearing, theissue of visitation is not properly before us (see Matter of Ca'leb R.D. [MaryD.S.], 121 AD3d at 891). Balkin, J.P., Cohen, Duffy and LaSalle, JJ., concur.