Carney v. Carney, 18 CA 17-01228

• Decision Date: 23 March 2018
• Docket Number: 18 CA 17-01228
• Citation: 2018 NY Slip Op 02034
• Parties: JUN W. CARNEY, PLAINTIFF-RESPONDENT, v. PATRICK J. CARNEY, DEFENDANT-APPELLANT. TIMOTHY P. DONAHER, APPELLANT. (APPEAL NO. 1.)
• Court: New York Supreme Court — Appellate Division

2018 NY Slip Op 02034

JUN W. CARNEY, PLAINTIFF-RESPONDENT, v. PATRICK J. CARNEY, DEFENDANT-APPELLANT. TIMOTHY P. DONAHER, APPELLANT. (APPEAL NO. 1.)

18 CA 17-01228

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Decided on March 23, 2018

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

HARRIS BEACH PLLC, PITTSFORD (SVETLANA K. IVY OF COUNSEL), FOR DEFENDANT-APPELLANT AND APPELLANT.

MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-RESPONDENT.

CHIEF DEFENDERS ASSOCIATION OF NEW YORK, ALBANY (JAMES A. HOBBS OF COUNSEL), AND THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO, FOR CHIEF DEFENDERS ASSOCIATION OF NEW YORK, AMICI CURIAE.

It is hereby ORDERED that said appeal insofar as taken by Timothy P. Donaher is unanimously dismissed and the order is reversed on the law without costs, the motion is granted, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following opinion by Peradotto, J.: In these consolidated appeals, we must determine whether courts may impute income to a party in determining the party's eligibility for assigned counsel. We hold that courts have no such authority. I Plaintiff and defendant are the divorced parents of two children. Following the divorce, plaintiff was awarded sole legal custody and primary physical residence of the children. Plaintiff subsequently filed several motions seeking a finding of contempt against defendant for his disobedience of prior orders of Supreme Court. Although the matter proceeded to trial in January 2015, the parties settled the dispute by an oral stipulation in which defendant admitted that he willfully violated a prior order by having contact with the children, providing them with phones, and having face-to-face and telephonic communication with them. The court sentenced defendant to five consecutive jail weekends followed by one work weekend. The parties agreed to further restrictions on defendant's access to the children, including scheduled periods of supervised visitation. The oral stipulation was subsequently entered as a written order (hereafter, stipulated order). According to plaintiff, defendant thereafter filed a petition in Family Court in May 2015 seeking sole custody of the children, but that petition was dismissed. Defendant moved by order to show cause in October 2015 to modify the terms of the stipulated order by granting joint custody of the children and primary physical residence with him or, alternatively, unsupervised visitation, but he subsequently limited that request to changing his visitation from supervised to unsupervised. The court granted plaintiff's motion to dismiss defendant's application, and this Court affirmed the order (Carney v Carney, 151 AD3d 1912, 1912 [4th Dept 2017], lv dismissed 30 NY3d 1012 [2017]). In April 2016, defendant filed a petition in Family Court seeking to modify the stipulated order by removing the supervised visitation restriction and obtaining custody and primary physical residence of the children. Defendant was assigned a public defender in Family Court. Plaintiff subsequently moved in Supreme Court by order to show cause filed in June 2016 seeking, among other things, an order adjudicating defendant in contempt for his continued disobedience of the court's prior orders, sentencing defendant to an appropriate period of incarceration, and modifying defendant's visitation to "eliminate all rights of visitation and all rights of communication with [the] children." During a subsequent appearance before Supreme Court, defendant appeared pro se and requested that counsel be appointed for him given his status as an unemployed graduate student and his lack of a full-time job. Defendant admitted that his living expenses were "next to nothing," except for his car payment and insurance, because he had been residing with his parents for 6½ years. The court expressed reservation about appointing counsel because of defendant's advanced degree and demonstrated "high level of skills," stated that its "obligation is to protect the taxpayers of this state," and questioned whether it could impute income to defendant before making a decision on his request for assigned counsel. The court reserved decision on defendant's request and scheduled a hearing, and it also transferred defendant's April 2016 petition from Family Court. Following correspondence in which the Monroe County Public Defender's Office informed the court that defendant qualified for assigned counsel under the applicable eligibility guidelines, the court responded with further questions and thereafter requested a formal motion for the assignment of counsel. Defendant then moved ex parte for an order assigning counsel pursuant to County Law § 722, which he supported with an affirmation from an assistant public defender and several exhibits. The assistant public defender affirmed that the Public Defender's Office had evaluated defendant's financial circumstances in determining his eligibility for assigned counsel, and asserted that the court was precluded from considering defendant's potential income in determining whether to assign counsel. The motion was thereafter the subject of a lengthy oral argument. By the order in appeal No. 1, the court concluded that it had the authority to impute income to defendant in determining his eligibility for assigned counsel and that a hearing was required to determine the appropriate amount of income to impute to defendant (Carney v Carney, 54 Misc 3d 411, 414-436 [Sup Ct, Monroe County 2016]). As relevant here, the court reasoned that the legislature adopted an " unable to retain counsel' standard to assure representation at public expense to those in real need, but not [to] extend that precious right to litigants who, by choice, intentionally limit their income to avail themselves of publicly financed legal services" (id. at 417). With respect to the right to assigned counsel under the Family Court Act and other statutes for a party who "is financially unable to obtain" counsel (Family Ct Act § 262 [a]), the court held that the term "unable" meant "incapable" of paying counsel, and that the legislature intended for courts to consider "not what an individual is doing now, but what he [or she] is capable of doing now," which suggested an inquiry into the individual's "employment potential—the current capability to earn sums that exceed poverty limits—before assigning counsel" (Carney, 54 Misc 3d at 418). The court further determined that there is no authority restricting its ability to impute income to an applicant for assigned counsel (id. at 426), and that the imputation of income concept in the area of spousal maintenance and child support was likewise justified by public policy in the context of assigned counsel (id. at 429). The court then created a framework for an adversarial hearing by, among other things, appointing the Public Defender's Office to represent defendant for the limited purpose of supporting his application for assigned counsel and appointing special counsel to present the facts in favor of imputation (id. at 432-435). Finally, the court sought to limit the reach of its decision by urging that it "should not be read outside its current facts, in this a civil case context" (id. at 436). The court thus ordered an evidentiary hearing to determine defendant's eligibility for assigned counsel based on any imputed income. Following further proceedings and the evidentiary hearing, the court issued the order in appeal No. 2 in which it determined that $50,000 in income should be imputed to defendant and that defendant is not eligible for the appointment of counsel in the pending proceeding (Carney v Carney, 55 Misc 3d 1220[A], 2017 NY Slip Op 50667[U], *16 [Sup Ct, Monroe County 2017]). Defendant and Timothy P. Donaher, the Monroe County Public Defender, appeal from each order. II As a preliminary matter, we note that the order in appeal No. 1 is not appealable as of right inasmuch as it did not decide a motion made on notice (see CPLR 5701 [a] [2]; Sholes v Meagher, 100 NY2d 333, 335 [2003]) and instead merely directed a hearing to aid in the disposition of a motion (see CPLR 5701 [a] [2] [v]; Matter of Martin [Henderson-Johnson Co., Inc.], 71 AD3d 1503, 1503 [4th Dept 2010]; Howell v Independent Union of Plant Protection Empls., 112 AD2d 754, 754 [4th Dept 1985]). Nevertheless, under the limited circumstances of this case, we treat the notice of appeal in appeal No. 1 as an application for leave to appeal and grant the application in the interest of justice (see Dreher v Martinez, 155 AD3d 688, 689 [2d Dept 2017]; Hurd v Hurd, 66 AD3d 1492, 1493 [4th Dept 2009]; Bergner v Bergner, 170 AD2d 421, 422 [2d Dept 1991]; see generally CPLR 5701 [c]; City of Buffalo Urban Renewal Agency v Moreton, 100 AD2d 20, 21 [4th Dept 1984]). As a further preliminary matter, we conclude that the appeals insofar as taken by Donaher must be dismissed inasmuch as he is not an "aggrieved party" and thus is not a proper appellant (CPLR 5511). A party is aggrieved when he or she " has a direct interest in the controversy which is affected by the result' and [when] the adjudication has a binding force against the rights, person or property of the party' " (Matter of DeLong, 89 AD2d 368, 370 [4th Dept 1982], lv denied58 NY2d 606 [1983]). "The fact that the adjudication may remotely or contingently affect interests which [the party] represents does not give [it] a right to appeal' " (id.). Here, Donaher has no direct interest in the controversy between plaintiff and defendant, and the fact that the court's determinations may contingently affect interests that Donaher and his office represent does not give him a right to appeal. "The fact that the [decisions] contain[] language or reasoning that [Donaher] deems adverse to his interests does not provide him with a basis for standing to take an appeal' " (Matter of Cooper v...