Opinion
1254 CA 17–01135
11-16-2018
Antonella VILLELLA, Plaintiff–Respondent, v. Raffaele R. VILLELLA, Defendant–Appellant.
JENNIFER M. LORENZ, ORCHARD PARK, FOR DEFENDANT–APPELLANT.
JENNIFER M. LORENZ, ORCHARD PARK, FOR DEFENDANT–APPELLANT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Niagara County, for a new hearing.
Memorandum: Defendant father appeals from an order determining, inter alia, that he owes maintenance arrears, child support arrears, and outstanding education and uninsured medical expenses to plaintiff pursuant to a prior order of support. We agree with the father that he was denied his right to counsel at the hearing to determine whether he was in willful violation of the support order (see Family Ct. Act § 262 [a][vi]; Judiciary Law § 35[8] ). Supreme Court "failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney" ( Matter of Soldato v. Caringi, 137 A.D.3d 1749, 1749, 28 N.Y.S.3d 537 [4th Dept. 2016] ), and failed to grant the father an adjournment at the outset of the second day of the hearing when he requested the assistance of counsel (see Matter of Hassig v. Hassig, 34 A.D.3d 1089, 1090, 825 N.Y.S.2d 165 [3d Dept. 2006] ). To the extent that the father thereafter chose to proceed pro se, the court also failed to "engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel" ( Soldato, 137 A.D.3d at 1749, 28 N.Y.S.3d 537 ; see Matter of Girard v. Neville, 137 A.D.3d 1589, 1590, 26 N.Y.S.3d 897 [4th Dept. 2016] ; Matter of Pugh v. Pugh, 125 A.D.3d 663, 664, 2 N.Y.S.3d 608 [2d Dept. 2015] ). We therefore reverse the order and remit the matter to Supreme Court for a new hearing. We decline to award the father appellate fees and costs.