May 6, 2020 Decisions

Family Court properly held father willfully violated child support order
Matter of Alterman v. Shmushkovich, 2019-06349
The mother commenced this proceeding against the father, alleging that he was in willful violation of a child support order. Following a hearing, the Support Magistrate found, among other things, that the father had willfully failed to comply with his child support obligations and recommended that he be incarcerated. Subsequently, in an order of commitment, the Family Court essentially confirmed the Support Magistrate’s determination, and committed the father to the New York City Department of Correction for a period of six months unless he paid the purge amount of $14,000. The father appealed.

The appeal from the order as committed the father to the custody of the New York City Department of Correction must be dismissed as academic. However, the appeal from the order as, in effect, confirmed the finding that the father was in willful violation of the child support order is not academic in light of the enduring consequences which could flow from the finding that he violated the child support order (see Matter of Stradford v. Blake, 141 AD3d 725). Here, “the mother presented prima facie evidence of the father’s failure to meet his support obligations as set forth in the order of child support (see Matter of Detore v. Detore, 173 AD3d 1181, 1183).” On the other hand, the father failed to offer credible evidence of his inability to comply with the child support order (see Matter of Nickel v. Nickel, 172 AD3d at 1212). Specifically, he failed to submit sufficient medical evidence to support his argument that he was unable to work due to medical impairments (see Matter of Brewster v. Davidson, 173 AD3d at 1177). Further, the father failed to provide evidence that he made reasonable efforts to obtain employment to make his child support payments (see Matter of Ferrer v. Brown, 165 AD3d at 930-931). The Second Department agrees with the Family Court’s determination, in effect, to confirm the Support Magistrate’s finding of willfulness.

 

Supreme Court providently exercised discretion in awarding only $5,000 counsel fees
Gove v. Gove, 2018-14878
The plaintiff commenced an action for divorce and ancillary relief. The parties entered into a stipulation of settlement in 2018, in which the plaintiff reserved the right to seek an award of counsel fees. Later, she moved for an award of counsel fees, which the defendant opposed. The Supreme Court granted the plaintiff’s motion for an award of counsel fees only to the extent of awarding her $5,000. The plaintiff appealed.

“An appropriate award of attorney’s fees should take into account the parties’ ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances” (DiBlasi v. DiBlasi, 48 AD3d 403, 405). Based on the financial circumstances of this case, the Supreme Court providently exercised its discretion in limiting the plaintiff’s award of counsel fees to the sum of $5,000, in addition to the interim counsel fees in the sum of $2,500 that she was already awarded (see Beyel v. Beyel, 173 AD3d 1129, 1130).

 

Family Court properly held father willfully violated child support order
Matter of DeNittis v. Chalfant, 2019-06656
The mother commenced this proceeding in February 2019, alleging that the father was in willful violation of a child support order in that he routinely failed to make regular and full payments. Following a hearing, and upon its findings of facts, the Family Court issued an order of disposition determining that the father willfully violated the child support order. The court also issued an order directing entry of a money judgment in favor of the mother and against the father in the amount of $2,035.42 for child support arrears. The father appealed.

Here, the mother presented a certified account statement from the Special Collections Unit demonstrating that, at the time of the hearing, the father owed more than $2,000 towards his support obligation, which constituted prima facie evidence of his willful violation of the order of support (see Matter of Kimbrough v. Murphy, 156 AD3d 640, 641). Further, the father failed to meet his burden of establishing competent credible evidence of his inability to make the required payments. He failed to present evidence that he made a reasonable effort to obtain gainful employment to meet his child support obligation, despite his contention of such (see Matter of Kretkowski v. Pasqua, 147 AD3d 836, 837). The Second Department agrees with the Family Court’s determination that the father willfully violated the order of child support.

 

Father was deprived of his right to counsel in support violation proceeding where order of incarceration was a possibility
Matter of Goodine v. Evans, 2019-05718
Here, the mother filed a petition seeking to enforce an order of child support, alleging that the father willfully failed to obey the support order. At the initial appearance, the father appeared pro se and requested assigned counsel. The matter was adjourned for the father to retain private counsel. At the re-scheduled court appearance, the father failed to appear and the Support Magistrate immediately proceeded to an inquest. Following the inquest, the Support Magistrate found the father to be in arrears in the amount of $17,928.76 and in willful violation of the support order, and, as a result, recommended a period of incarceration. In an order of commitment, the Family Court confirmed the Support Magistrate’s finding and committed him to the Nassau County Correctional Facility for a term of 30 days unless he paid the purge amount of $10,000.

The appeal from the order as committed the father to the custody to the correctional facility must be dismissed as academic, as the period of incarceration has expired. However, in light of the consequences which could flow from the determination that the father violated a prior order of child support, the appeal from so much of the order as confirmed the determination that the father was in willful violation of the support order is not academic (see Matter of Miller v. DiPalma, 179 AD3d 696).
“An individual has a constitutional right to counsel in any proceeding in which incarceration is a possibility (see Argersinger v. Hamlin, 407 US 25, 37).” When the father initially appeared, “although [he] informed the Support Magistrate that he could not afford private counsel and requested the appointment of assigned counsel, the Support Magistrate repeated that he was not entitled to appointed counsel if he was working.” The matter was adjourned for a hearing, and no further advisement or inquiry was made by the court.

The Second Department found that the Support Magistrate should have inquired further in to the father’s financial circumstances, including, but not limited to, his expenses because the father expressed a desire to have an attorney appointed (see Matter of Soto v. Willis, 143 AD3d 728, 730). “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 Bader v. Hazzis, 77 AD3d 742, 744). Despite the father’s statements at the pretrial appearance, the Support Magistrate adjourned the matter for a hearing. The father was deprived of his right to counsel and reversal is required (see Matter of Gallousis v. Gallousis, 166 AD3d at 974).