Carney v. Carney

• Decision Date: 04 October 2016
• Citation: 2016 N.Y. Slip Op. 26319,54 Misc.3d 411,38 N.Y.S.3d 765
• Parties: Jun CARNEY, Plaintiff, v. Patrick CARNEY, Defendant.
• Court: New York Supreme Court

54 Misc.3d 411

38 N.Y.S.3d 765

2016 N.Y. Slip Op. 26319

Jun CARNEY, Plaintiff,

v.Patrick CARNEY, Defendant.

Supreme Court, Monroe County, New York.

Oct. 4, 2016.

Kristina Karle, Esq., Rochester, Attorney for Plaintiff.

Jill L. Paperno, Esq., First Assistant Public Defender, Rochester, Special Appointed Counsel for defendant.

Paul Meyer, Esq., Special Appointed Counsel, Rochester.

RICHARD A. DOLLINGER

, J.

In this instance, this court considers an issue of apparent first impression in New York. Can the court, in deciding whether to appoint counsel for an allegedly indigent father in a custody matter, impute income to that applicant consistent with his acknowledged skills and employment capability? The answer to this question submerges the court into the nooks and crannies of constitutional rights, the system of evaluating indigence under state law, longstanding public policies concerning the allocation of scarce resources available from the public fisc, and evolving standards required by New York's constitutional mandates.

In this case, a long-time litigant before this court now seeks appointment of counsel. The pending matter stems from a confluence of two proceedings. In April 2016, the applicant father, subject to substantial restrictions of his parenting time with his two teen-aged daughters, filed a petition in Family Court seeking to remove the court imposed restriction of supervised visitation with his children, and obtain sole custody and primary residence. In response, the mother filed an order to show cause in Supreme Court seeking a finding of contempt against the father, sentencing him to incarceration, a fine of $25,000, payment of counsel fees, elimination of any contact between father and children, and other assorted relief (including transfer of the Family Court petition to Supreme Court). The family court petition was transferred to this court, and the father then applied for appointed counsel.

Before further review, a short recounting of the history of this dispute illuminates the court's analysis. There were four prior contempt motions filed by the mother, seeking to obtain the father's compliance with court orders, all of them before February 2014. When a trial took place in January 2015, the couple settled the dispute. The father admitted to wilful violations of prior court orders, and the court sentenced him to work weekends in jail. The parties agreed to further restrictions on the father's access, including requiring supervision by his parents at all interactions with his daughters. In her current petition to the court, the wife recounts a series of contacts between the father and his daughters which violate the terms of the prior court order. The violations included attending public events (which the prior order banned him from attending unless supervised), calling the mother a “stupid bitch” in the presence of the children, having personal contact with the children without supervision in a number of settings, and having email and telephone access outside permitted times. The mother also states that the father filed two previous petitions in Family Court, in May and October of 2015, in which he sought relief from the prior court orders, but that both of those were dismissed for lack of legal substance. To say that this seemingly interminable custody contest has been suffused with antagonism is an understatement. In prior pleadings before this court, there are countless emails directed by the father to his children calling the mother an assortment of vile names. There is evidence that the father has taken numerous steps to evade and violate court orders in the past, including buying the daughters cell phones, which they hid in their mother's house, in violation of a prior court order. The father was sentenced to incarceration for these violations. In addition, in an act observed by the court, after a proceeding in this case, the father got up from the tables in the courtroom and, while his wife was standing next to his two daughters, walked directly between them, grabbed one of his daughter's hands and led her out of the courtroom without acknowledging or saying anything to the mother. In this court's view, this behavior was boorish and demeaning to his wife.¹

During this process, this court, on a previous occasion, assigned an attorney to represent the father. This assignment was paid at public expense because, according to the assigned attorney, the father was “indigent.” At that time, this court accepted the claim of indigence and did not contest it further. Importantly, the mother's counsel did not protest the appointment of counsel for the father. Intermittently, the father, on several occasions, retained private counsel to represent him during the various court appearances. There is no evidence of any retainer agreements between the father and his then counsel.

As the dust settles, the court now has two applications before it: (1) the father's request for a change of custody and release from supervision restrictions, and (2) the mother's application for a finding of contempt and other relief. Now, in response to the wife's application and because he has sought to contest custody and primary residence of his daughters, the father asks this court to appoint counsel. Consistent with the prior practice of this court, the court told the father to contact the Monroe County Public Defender's Office, which screens candidates that are under consideration for appointment of counsel in Family Court matters. The Public Defender's Office conducted their screening, asking the father to present certain documents for their review and, after completing the screening, determined that the father qualified for appointment of counsel and asked this court to make that appointment.²

This court declined to make the appointment upon the Public Defender's informal request, although, as noted earlier, this court had previously made an appointment of counsel for the husband without asking any further questions. This court, after an informal consultation with the Monroe County Public Defender, requested that they bring a motion for the appointment in order to permit the court to weigh what it considers to be competing legal and public policy grounds inherent in this process. The Public Defender then brought the current motion. Importantly, the Public Defender argued that the motion should be considered by the court ex parte, and that the motion papers should not be forwarded to the mother's counsel, as the papers contained confidential financial information that was not pertinent to the underlying contempt application or the father's request for a change in residence or custody.³

The court hesitated to appoint counsel and required the motion because of its knowledge of certain facts—gleaned from undisputed representations in prior pleadings—regarding the husband's professional credentials and job skills. The court knew, based on previous submissions to the court, that the father possesses a master's degree in mathematics and has held the degree for years, even before the divorce proceeding. He holds a bachelor's degree in micro-electrical engineering. He has taught at numerous colleges, albeit for short periods of time. He has matriculated at three graduate programs. In addition, the father has, on previous occasions, disclosed that he was working on a doctorate in mathematics at the State University of New York at Binghamton. The court notes that the father has been working on this advanced degree since the commencement of the divorce action in 2011. This court also notes that the father has, during the pendency of the divorce, acknowledged that he does tutoring and other services to generate some income. He pays no child support or other costs, even though he is not the primary residential parent of his daughters. The court also knows, through previous affidavits, that the father was living at his parents home, driving his own car, and apparently buying cell phones (and service plans) for his daughters. Importantly, although not an issue in the prior proceedings, the court notes that there was no prior evidence that he had seriously sought employment. As an additional consideration, this court knows that the mother, an executive at Xerox Corporation, has been represented by private counsel throughout all the matters ⁴ —the numerous contempt motions and other proceedings, brought during the divorce action and thereafter. In this court's view and without confirmation by the mother's counsel, it is readily apparent that the mother, in seeking to enforce court orders, has spent tens of thousands of dollars in legal fees. Now, the mother faces an additional proceeding, in which the husband seeks to change custody and primary residence and which undoubtedly will cost the her thousands more.

As noted earlier, this court has, on prior occasions, seriously questioned the representations made by the father in these proceedings. Simply put, it has been the court's conclusion, based on a review of affidavits and other pleadings, that the father has mislead the court previously, and, on several occasions, simply been untruthful. The behavior of the father in violating court orders and misrepresenting facts, casts a shadow of skepticism over his current claims that he is involuntarily indigent and cannot afford counsel. Overarching this concern are a series of legal questions of whether this court, under the current circumstances, can hold a hearing on the father's claim of indigence, what type of hearing should occur, who should challenge the father's assertions of sustained and allegedly incurable indigence, and whether there are any circumstances in which the court could impute income to the father that would negate his claims of indigence.

The Public Defender, in seeking an appointment of counsel for the father, notes that he was subject to an “eligibility interview.” The father supplied his 2014 and 2015 income tax returns...