Opinion
2018–04066 Docket No. F–11209–13
03-20-2019
In the Matter of Christine Ann WORSDALE, Respondent, v. Richard Peter HOLOWCHAK, Appellant.
Kristina S. Heuser, Locust Valley, NY, for appellant.
Kristina S. Heuser, Locust Valley, NY, for appellant.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn a proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated February 22, 2018. The order of commitment, upon an order of the same court (Nadine J. Satterthwaite, S.M.), dated February 9, 2018, adjudging the father to be in willful violation of an order of the same court (Patricia Bannon, S.M.), dated November 23, 2016, and upon, in effect, the confirmation by the same court (Ellen R. Greenberg, J.), of the finding of willfulness, committedthe father to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid a purge amount of $ 75,000.
ORDERED that the order of commitment is reversed, on the law, without costs or disbursements, the order dated February 9, 2018, is vacated, and the matter is remitted to the Family Court, Nassau County, for a new hearing and a new determination of the petition thereafter in accordance herewith.
The mother and the father were divorced in 2012. The mother was awarded sole legal and residential custody of the parties' children, and the father was ordered to pay $ 600 per week in child support. The mother later commenced contempt proceedings against the father for failing to pay child support. In an order dated November 23, 2016, a support magistrate ordered the father to pay $ 1,000 per week in child support: $ 600 for basic child support and $ 400 for arrears.
In January 2017, the mother again petitioned to hold the father in contempt, on the ground that he had willfully failed to comply with the November 23, 2016, order by not making any payments required by that order. Following a hearing at which the father appeared pro se, the Support Magistrate found that the father had willfully failed to pay his child support and that he had not shown an inability to pay. Upon referral by the Support Magistrate, the Family Court, in effect, confirmed the finding of willfulness and committed the father to the custody of the Nassau County Correctional Facility for 90 days unless he purged himself of his contempt by paying $ 75,000 to the Nassau County Support Collection Unit. The father appeals from the order of commitment.
A respondent in a contempt proceeding before the Family Court "has the right to the assistance of counsel," including "the right to have counsel assigned by the court" if "he or she is financially unable to obtain the same" ( Family Ct Act § 262[a] ). "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" ( Matter of Bader v. Hazzis, 77 A.D.3d 742, 744, 909 N.Y.S.2d 121 ; see Matter of Soto v. Willis, 143 A.D.3d 728, 730, 38 N.Y.S.3d 250 ; Matter of Pugh v. Pugh, 125 A.D.3d 663, 664, 2 N.Y.S.3d 608 ). "The deprivation of [a parent's] fundamental right to counsel requires reversal, without regard to the merits of [his or] her position" ( Matter of Pugh v. Pugh, 125 A.D.3d at 664, 2 N.Y.S.3d 608 ; see Matter of Soto v. Willis, 143 A.D.3d at 730, 38 N.Y.S.3d 250 ).
We agree with the father's contention that he was deprived of his right to counsel. After the Support Magistrate adjourned the hearing for the express purpose of allowing the father to retain counsel, the father appeared at the next hearing date without counsel and informed the Support Magistrate that he could not afford to hire an attorney because he had lost his job following the last court date. The Support Magistrate should have inquired into the father's current financial circumstances, including his expenses, to determine whether he had become eligible for assigned counsel (see Carney v. Carney, 160 A.D.3d 218, 226, 73 N.Y.S.3d 694 ; Matter of Soto v. Willis, 143 A.D.3d at 730, 38 N.Y.S.3d 250 ; Matter of Pugh v. Pugh, 125 A.D.3d at 664, 2 N.Y.S.3d 608 ; Matter of Bader v. Hazzis, 77 A.D.3d at 744, 909 N.Y.S.2d 121 ). After the matter was referred to the Family Court, the court should have inquired into the father's financial circumstances, including his expenses, to determine whether he was eligible for assigned counsel in light of his contention that he could not afford to retain an attorney because he was unemployed (see Carney v. Carney, 160 A.D.3d at 226, 73 N.Y.S.3d 694 ; Matter of Soto v. Willis, 143 A.D.3d at 730, 38 N.Y.S.3d 250 ; Matter of Pugh v. Pugh, 125 A.D.3d at 664, 2 N.Y.S.3d 608 ; Matter of Bader v. Hazzis, 77 A.D.3d at 744, 909 N.Y.S.2d 121 ). Although the court later assigned the father an attorney, the court failed to provide the "attorney a reasonable opportunity to appear," as the court assigned the attorney midway through the final court appearance, after the fact-finding hearing had concluded, after the Support Magistrate had made its credibility and factual findings, and after the court had decided to incarcerate the father ( Matter of Scott v. Scott, 62 A.D.3d 714, 715, 879 N.Y.S.2d 488 ; see Matter of DeMarco v. Raftery, 242 A.D.2d 625, 626–627, 662 N.Y.S.2d 138 ). Indeed, the court denied the assigned attorney's request for an adjournment (see Matter of Scott v. Scott, 62 A.D.3d at 715, 879 N.Y.S.2d 488 ).
Accordingly, we remit the matter to the Family Court, Nassau County, for a new hearing on the mother's contempt petition. At that time, the Family Court, after advising the father of his rights pursuant to Family Court Act § 262(a), should conduct a detailed inquiry to determine whether the father is eligible for assigned counsel.
In light of the foregoing, we need not address the father's remaining contentions.
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.