FEBRUARY 16, 2022 DECISIONS

Matter of Sylvester v. Goffe, 2020-07276

The parties have one child together, who was born in 2015.  Pursuant to an order, the father was directed, among other things, to pay $100 weekly in basic child support.  In August 2019, the mother filed a petition, alleging that the father was in willful violation of the child support order.

At the commencement of the hearing, the Support Magistrate asked the father what he “want[ed] to do about legal representation,” to which the father replied, “I’m speaking for myself at this point.”  The Support Magistrate did not make any further inquiries regarding counsel.  The Support Magistrate also failed to advise the father about the potential risks of proceeding pro se.  The Second Department determined that the Support Magistrate failed to conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowing, intelligent, and voluntary (see Matter of Lherisson v. Goffe, 198 AD3d 965, 966-967).  The father was deprived of his right to counsel at the hearing.  This violation was not cured by the fact that the father was later represented by assigned counsel during the confirmation hearing (see Matter of Worsdale v. Holowchak, 170 AD3d 1027, 1028).  The order of commitment is reversed, and the matter is remanded.

 

Matter of Mansour v. Mahgoub, 2020-08975

The parties here are parents of a child born in 2007.  In 2016, the petitioner commenced this family offense proceeding, alleging in her amended petition, that the appellant committed various family offenses in 2012 and 2016, and seeking an order of protection against the appellant for herself and the child.

An order must conform strictly to the underlying decision, and where an order is inconsistent with the underlying decision, then the decision controls (see Valensi v. Park Ave. Operating Co. LLC, 169 AD3d 960, 962; Matter of Schwarzenberger, 116 AD3d 868, 869-870).  The order appealed from here did not conform with the court’s determination to the extent that it entered a finding that the appellant committed the family offense of menacing in the second degree, rather than menacing in the third degree.  The order is modified to conform to the court’s determination that the appellant committed menacing in the third degree.

 

Matter of Mulholland v. Mulholland, 2021-03468

The Second Department found that the Family Court properly dismissed the father’s petition for custody modification since he did not make an evidentiary showing of a change in circumstances (see Matter of Edem v. Wondemagegehu, 199 AD3d at 796).  The father’s allegations relating to legal custody were conclusory and vague, and failed to support a finding that the manner in which the parties were parenting had changed since the stipulation (see Connor v. Connor, 104 AD3d 638, 639).  The father’s allegations regarding the parental access schedule and the locations of the parties’ homes demonstrated that the parties were complying with the stipulation and that there was no change in circumstances (see Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706).  The father failed to make an evidentiary showing of a change in circumstances, and the court properly granted the mother’s motion and dismissed the father’s petition without a hearing (see Matter of Edem v. Wondemagegehu, 199 AD3d at 796).