| Matter of Zulme v Maehrlein |
| 2015 NY Slip Op 07983 [133 AD3d 608] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Francelene Zulme,Respondent, v Jason Maehrlein, Appellant. (Proceeding Nos. 1, 2, 4.) In theMatter of Jason Maehrlein, Appellant, v Francelene Zulme, Respondent. (ProceedingNos. 3, 5.) |
Joseph J. Artrip, Cornwall, N.Y., for appellant.
Christopher E. Gurda, Middletown, N.Y., for respondent.
Robert M. Rametta, Goshen, N.Y., attorney for the children.
Appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.),dated July 11, 2014. The order, inter alia, after a hearing, and upon the father's failure toappear at a continued hearing, granted the mother's petition to modify a prior order ofcustody so as to award her sole legal and physical custody of the subject children.
Ordered that the appeal from so much of the order as granted the mother's petition tomodify a prior order of custody so as to award her sole legal and physical custody of thesubject children is dismissed, without costs or disbursements, as no appeal lies from thatportion of the order which was entered on the father's default; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs ordisbursements.
The father failed to appear at a continued custody hearing, and his attorney did notparticipate at that hearing in his absence. Thus, the father defaulted, and he may notchallenge on this appeal the merits of that portion of the order which granted the mother'spetition to modify a prior order of custody so as to award her sole legal and physicalcustody of the subject children (see CPLR 5511; Matter of Li Wong v Fen Liu,121 AD3d 692 [2014]).
This Court may review the father's contention that the Family Court erred in itspre[*2]hearing denial of his request for the assignment ofnew counsel, since that ruling was a subject of contest in the Family Court (see Matter of Munoz vEdmonds-Munoz, 123 AD3d 1038, 1039 [2014]; Matter of Angie N.W. [MelvinA.W.], 107 AD3d 907, 908 [2013]). However, upon review, the ruling was notan improvident exercise of discretion, since the father was not entitled to counsel of hischoice and failed to establish that good cause existed to warrant the assignment of newcounsel (see Matter of Wiley vMusabyemariya, 118 AD3d 898, 900 [2014]; Matter of DeMichiel vDeMichiel, 66 AD3d 894, 895 [2009]).
The father's remaining contentions are either without merit or not properly beforethis Court. Rivera, J.P., Balkin, Miller and Hinds-Radix, JJ., concur.