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FATHER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THIS CHILD SUPPORT PROCEEDING RESULTING IN HIS COMMITMENT TO THREE MONTHS IN JAIL; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not receive effective assistance of counsel in this child support proceeding which committed father to three months in jail for violation of the child support order:

We agree with the father that he was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of an order of child support. In support proceedings such as this one, “the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard”… . Here, the father’s defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Notably, despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father’s medical records or provide the court with any relevant financial documentation. The father’s counsel also failed to call any witnesses to testify as to the effects of the father’s back injury, subpoena his treating physician, or obtain a medical affidavit. The Family Court made specific reference to the lack of any credible medical testimony, financial disclosure affidavit, tax returns, or proof of a job search in its determination that the father failed to refute the mother’s prima facie showing of willfulness. Counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father’s contention constituted a failure to meaningfully represent the father, and he is entitled to a new hearing on the violation petition … . Matter of Miller v DiPalma, 2020 NY Slip Op 00140, Second Dept 1-8-20

 

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SENTENCE WHICH INCLUDED BOTH JAIL TIME AND PROBATION FOR VIOLATION OF A CHILD SUPPORT ORDER IS ILLEGAL; AN ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION OF THE ERROR (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the imposition of a jail sentence and probation for father’s failure to pay support in violation of a court order was illegal. An illegal sentence is appealable without preservation of the error:

Although the father failed to preserve his challenge to the legality of his sentence, a challenge to an unlawful sentence is not subject to the preservation rule … . Family Court Act § 454 expressly delineates the authority of the Family Court to impose either probation or a term of incarceration upon a finding of a willful violation of an order of support, not both (… Family Court Act § 454[3]). Thus, the Family Court was without authority to impose both a jail term and probation (see Family Court Act § 454[3] …). Since the father completed his 90-day term of incarceration, that portion of his sentence imposing probation must be vacated … . Matter of Lopez v Wessin, 2020 NY Slip Op 00137, Second Dept 1-8-20

 

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FATHER WAS ENTITLED TO A HEARING ON WHETHER HE WILLFULLY VIOLATED A CHILD SUPPORT ORDER, ALTHOUGH FATHER COMPLETED THE SENTENCE OF INCARCERATION, THE APPEAL IS NOT MOOT BECAUSE OF THE STIGMA OF A CIVIL CONTEMPT FINDING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father was entitled to a hearing on whether he willfully violated a child support order. The Fourth Department noted that. although father had completed the sentence of incarceration, the appeal was not moot because of the consequences which could flow from a finding of civil contempt:

We agree with the father … that the court erred when it determined that the father’s alleged violation of the child support order was willful because it did not afford the father with the opportunity to be heard and present witnesses (… see generally Family Ct Act §§ 433, 454 [1]). Although “[n]o specific form of a hearing is required, . . . at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” … . Moreover, “[i]t is well settled that neither a colloquy between a respondent and [the] [c]ourt nor between a respondent’s counsel and the court is sufficient to constitute the required hearing” … .

Here, none of the parties’ appearances on the violation petition consisted “of an adducement of proof coupled with an opportunity to rebut it” … . At most, there was merely “a colloquy” between the father and Support Magistrate, which is insufficient to constitute the required hearing . Moreover, there is nothing in the record to establish …  petitioner mother provided admissible evidence with respect to the father’s alleged willful failure to pay child support, nor is there any admissible evidence submitted by the Support Collection Unit (see generally Family Ct Act § 439 [d] … ). Also, the father was never given the opportunity to present evidence rebutting the allegations in the petition. Matter of Green v Lafler, 2019 NY Slip Op 08306, Fourth Dept 11-15-19

 

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MOTION TO QUASH SUBPOENA ISSUED TO ATTORNEY WHO REPRESENTED THE ORIGINAL BORROWERS AGAINST PROPERTY SUBJECT TO FORECLOSURE PROCEEDINGS SHOULD NOT HAVE BEEN QUASHED, CIVIL CONTEMPT ACTION AGAINST THE ATTORNEY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA FOR BOTH TYPES OF PROCEEDINGS EXPLAINED (SECOND DEPT).

The Second Department determined the subpoona issued by the current owners of property subject to a foreclosure action (the Frankels) to the attorney (Satran) who represented the parties who initially took out the loan (the Confinos) should not have been quashed, the action for civil contempt against the attorney should not have been dismissed, and attorney-client privilege could only be asserted at a subsequent deposition:

“A party or nonparty moving to quash a subpoena has the initial burden of establishing either that the requested disclosure is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” … . ” Should the [movant] meet this burden, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of [the] action'” … .

Here, Satran failed to meet his initial burden of demonstrating either that the requested disclosure was “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious” … . * * *

Additionally, the Supreme Court should have granted the Frankels’ motion to hold Satran in civil contempt for failure to comply with the subpoena by failing to appear for a deposition. “To prevail on a motion to hold another in civil contempt, the moving party must prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” … . ” To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party'” … .

Here, it was undisputed that Satran failed to comply with the subpoena by failing to appear for a deposition and that he had knowledge of the terms of the subpoena. Moreover, the Frankels demonstrated that Satran’s conduct prejudiced their right under CPLR 3101(a)(4) to obtain all information relevant and necessary to their defense of the present action and their cross claims against the Confinos … . Wells Fargo Bank, N.A. v Confino, 2019 NY Slip Op 06114, Second Dept 8-7-19

 

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THERE WAS NO SHOWING THAT THE DEPARTMENT OF SOCIAL SERVICE’S (DSS’S) VIOLATION OF A COURT ORDER LIMITING THE CHILD’S VISITATION WITH STEPMOTHER PREJUDICED THE CHILD’S RIGHTS, THEREFORE FAMILY COURT SHOULD NOT HAVE HELD DSS IN CONTEMPT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined that the Department of Social Services (DSS) should not have been held in contempt for violation of an order limiting the child’s visitation with the stepmother. DSS acknowledged it was aware of the order and acknowledged violating it. But there was no showing of prejudice to the child’s rights:

“A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party’s rights” … . DSS does not dispute that it was aware of the court’s order limiting visitation with the stepmother, nor does it dispute that it did not follow that order, thereby establishing the first two elements for a civil contempt finding. Notably, however, DSS contacted the court immediately after receiving the order to advise that the stepmother had been certified as a foster parent and that the child was residing [*3]with her in that capacity. The AFC’s petition, filed shortly thereafter, alleged that DSS had violated the order and sought to have the child placed with the foster parents, but failed to allege or present evidence establishing, by clear and convincing evidence, that DSS’s failure to comply with the December 2016 order had “prejudiced the [child’s] rights” … . Matter of Nilesha RR. (Loretta RR.), 2019 NY Slip Op 04063, Third Dept 5-23-19

 

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BY THE TIME OF SENTENCING FOR CONTEMPT FOR FATHER’S WILLFUL VIOLATION OF A SUPPORT ORDER, FATHER HAD PAID ALL THE ARREARS, FAMILY COURT SHOULD NOT HAVE ORDERED HIS INCARCERATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have ordered father incarcerated for 20 days for contempt for willful violation of a support order because, at the time of sentencing, father had paid all the arrears:

Upon finding that a respondent has willfully failed to obey a lawful order of support, Family Court may “commit the respondent to jail for a term not to exceed six months” (Family Ct Act § 454 [3] [a]). “Such a sentence is in the nature of a civil contempt, which ‘may only continue until such time as the offender, if it is within his or her power, complies with the support order'” ( … see Family Ct Act § 156 … ). Inasmuch as the father paid his child support arrears in full prior to the imposition of the sentence, Family Court abused its discretion by issuing the order of commitment … . Matter of Marotta v Casler, 2019 NY Slip Op 03417, Third Dept 5-2-19

 

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FINDING OF CIVIL CONTEMPT AGAINST THE CHAIR OF THE NYS PAROLE BOARD WAS WARRANTED, ALTHOUGH ORDERED TO CONDUCT A DE NOVO HEARING ON PETITIONER-INMATE’S APPLICATION FOR RELEASE ON PAROLE, THE EVIDENCE SUPPORTED THE CONCLUSION THAT THE BOARD DENIED PAROLE BASED ON THE SEVERITY OF THE OFFENSE ALONE, WITHOUT CONSIDERING THE STRONG FACTORS WHICH FAVORED RELEASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the Chair of the NYS Parole Board was properly held in contempt for failing to comply with an order granting petitioner, in inmate who had served 40 years in prison for murdering a police office, a de novo hearing on his application for parole release. The court noted that this is the first time a court had held a parole board chair in contempt. The court found that the Board based its denial of parole solely on the severity of the offense, and did not consider the strong factors favoring release, in violation of the order:

Here, under the unique facts of this particular case, we agree with the Supreme Court’s exercise of its discretion in granting the petitioner’s motion to hold the appellant … in civil contempt for the Board’s failure to comply with the Supreme Court’s judgment dated October 2, 2015. In the judgment dated October 2, 2015, the Supreme Court, after concluding, among other things, that the Board’s determination to deny parole release was not supported by an application of the factual record to the statutory factors set forth in Executive Law § 259-i, that the Board’s determination was based exclusively on the severity of the petitioner’s offense, and that there was no rational support in the record for the Board’s determination, remitted the matter to the Board “to make a de novo determination on petitioner’s request for parole release” to be held before a different panel of the Board.

As previously noted, the Board did not appeal from that judgment. Rather, it purported to comply with the judgment by rendering a new determination following a de novo interview before a different panel and, in its written decision and in the transcript of the interview, purported to comply with its responsibilities to consider the requisite statutory factors. However, the Supreme Court, after conducting an evidentiary hearing, decided that the Board again denied parole release exclusively on the basis of the underlying conviction without giving consideration to the statutory factors. Consequently, the Supreme Court held that a finding of civil contempt was warranted. Matter of Ferrante v Stanford, 2019 NY Slip Op 03334, Second Dept 5-1-19

 

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COURT SHOULD HAVE INQUIRED INTO FATHER’S ELIGIBILITY FOR ASSIGNED COUNSEL IN THE CONTEMPT PROCEEDINGS STEMMING FROM FATHER’S FAILURE TO PAY CHILD SUPPORT, FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined father was deprived of is right to counsel in a contempt proceeding stemming from his failure to pay child support:

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” … . “The deprivation of [a parent’s] fundamental right to counsel requires reversal, without regard to the merits of [his or] her position” … .

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 … . 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 … . 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 … . Indeed, the court denied the assigned attorney’s request for an adjournment … . Matter of Worsdale v Holowchak, 2019 NY Slip Op 02104, Second Dept 3-20-19

 

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MOTION TO PURGE THE CONTEMPT ORDER REGARDING THE REMOVAL OF SOLID WASTE THAT HAD BEEN DUMPED ON A FIELD BY DEFENDANTS SHOULD HAVE BEEN GRANTED AND THE INCARCERATED DEFENDANT SHOULD BE RELEASED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants’ motion to purge the contempt order should have been granted and one of the defendants, Cascino, who had been incarcerated for more than a year to force compliance with the underlying order, should be released. The court had ordered defendants to remove solid waste that had been dumped by then on a field. Much of the material had been removed but questions of fact remained whether all of it had been removed:

… [A] question of fact remains as to whether defendants completed the required remediation. This impasse brings us back to the fundamental problem that the disputed material looks like regular topsoil to the human eye. Despite ongoing removal efforts and Supreme Court having concluded multiple hearings throughout 2016 and 2017 as to the remediation performed, the difficulty of identifying the precise location of any remaining material has left the parties at a continuing impasse.

Given these circumstances, we conclude that to continue Cascino’s incarceration any further would serve no viable purpose and cannot be sustained. We are satisfied that the record establishes a significant effort on defendants’ part to purge the contempt, while recognizing that there remains some dispute as to whether all the disputed material has been removed. That said, until such time as a definitive showing has been made that the disputed material actually remains and precisely where, it would be improvident to continue Cascino’s incarceration. For these reasons, we conclude that the order must be reversed and defendants’ motion to purge the contempt granted. Town of Copake v 13 Lackawanna Props., LLC, 2019 NY Slip Op 01271, Third Dept 2-21-19

 

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DEFENDANT SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO PAY ATTORNEY’S FEES AS ORDERED BY THE COURT, THE CONTEMPT PROCEEDINGS WERE NOT FRIVOLOUS AND SANCTIONS SHOULD NOT HAVE BEEN IMPOSED FOR BRINGING THE CONTEMPT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s law firm (Villar firm) was entitled to attorney’s fees for work done before the firm was discharged without cause, the contempt action brought by the firm against defendant for failure to pay the fees as ordered by the court was valid and defendant should have been held in contempt, and the contempt proceedings were not frivolous or designed to harass. Therefore sanctions for bringing the contempt proceedings should not have been imposed:

To prevail on a motion to hold another party in civil contempt, the movant is “required to prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The movant in a civil contempt proceeding need not establish “that the disobedience [was] deliberate or willful” … . “Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order” … . …

“In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a] …). “[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c] …). Contrary to the Supreme Court’s determination, there is no evidence in the record to support a finding that the Villar firm pursued the contempt motion to harass the parties for settling their case … . Rhodes v Rhodes, 2019 NY Slip Op 01113, Second Dept 2-13-19

 

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