Carney v. Carney

• Decision Date: 19 May 2017
• Docket Number: No. 11/482.,11/482.
• Citation: 57 N.Y.S.3d 674 (Table)
• Parties: Jun CARNEY, Plaintiff, v. Patrick CARNEY, Defendant.
• Court: New York Supreme Court

57 N.Y.S.3d 674 (Table)

Jun CARNEY, Plaintiff,
v.
Patrick CARNEY, Defendant.

No. 11/482.

Supreme Court, Monroe County, New York.

May 19, 2017.

Kristina Karle, Esq., Attorney for Plaintiff.

Rochester, New York, Jill L. Paperno, Esq., First Assistant Public Defender, Rochester, NY, for Special Appointed Counsel for Defendant.

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

RICHARD A. DOLLINGER, J.

INTRODUCTION

Imputing income to a litigant in a matrimonial matter—attributing unrealized income to unrealized but attainable economic potential—is a tricky business for a trial judge. When the imputed income question arises as a precondition to assignment of a lawyer for a child custody matter, with a contempt finding as a possibility, the rules on imputation demand an even-more-exacting analysis. The collision of constitutional rights with the limitations on eligibility for free legal services, while considering a public policy to preserve scarce public resources for only those "unable to retain counsel," transforms the question from a pedagogical exercise, into a ripe dispute. In another context, can a highly-educated and highly-skilled litigant, who has failed to seriously pursue full-time employment commensurate with his advance skills for more than 20 years, qualify for publicly-funded legal assistance, while his wife, who advocates for her children, and seeks to hold her husband accountable for alleged violations of court orders, finances her legal representation with her own funds at substantial expense?

In this matter, a litigant seeks appointment of counsel, at the public's expense, to represent him in a child custody matter. His ex-wife, the primary custodial parent of the couple's two children, seeks to hold him in contempt for violations of court orders that restrict his access to his children. This court, in two prior opinions, set forth the long history of this mater and detailed prior court holdings and determinations.¹ The sum of this controversy is that the mother, employed as an executive at a large corporation, has had primary residence and custody of the two children, who are excellent students in high school. The father has long challenged the mother's custodial rights. The attorney for the children has consistently expressed that the children want to see and spend time with their father. However, the father has repeatedly failed to comply with court orders, and that failure has led to a parade of restrictions on his visitation, and eventually to his incarceration. Further alleged violations of court orders and rulings has prompted the current contempt proceeding. Throughout the entire history of these proceedings, the father has never paid child support. There is no evidence that he has ever paid for any the child-related costs for these children.² In the face of the latest proceeding, the father asks this court to appoint him a public defender to represent him.³ In the two prior opinions, this court has held that it has the discretion to impute income to the father before determining his eligibility for appointment of the Monroe County Public Defender to represent him, that the father had the burden of proof to demonstrate his entitlement to appointed counsel, and that it would not recuse itself from presiding over the hearing to determine what, if any, amount should be imputed to the father.

The mother of the children declined to participate in the hearing (citing the cost of participation). The absence of the mother's counsel to cross-examine the respondent created a dilemma for the court. There was no advocate present to either cross-examine the respondent on the veracity of his claims or to present evidence of available employment. In most instances where imputation of income arises during a matrimonial matter, the adversary-usually, the party seeking increased support-presses the payor spouse on the existence of employment opportunities and the payor's qualifications for those jobs. The adversary's strategy is to prove that a payor is not working to the fullest extent of their capabilities, so as not to pay increased financial support to their client. Without the mother's counsel to press these questions, without an adversary with an incentive to probe the respondent's answers and veracity, the court faced the prospect of confronting the respondent and asking probing questions regarding his qualifications and job experience. This court was sensitive to any apprehension that it would lose its impartiality as the trier of fact, but was also cognizant of its obligations under pertinent statutes to conduct an inquiry into whether the respondent was financially "unable to retain counsel." Under these circumstances, the court appointed an attorney to represent the public interest, and that attorney cross-examined the respondent at the hearing.

The hearing consumed parts of two days. The applicant father was the sole witness. This court appointed the Public Defender to represent the father on a provisional basis. The father's burden of proof was to show that he met the income qualifications for the public defender's services under the various New York statutes and rules governing the appointment of counsel at public expense. Initially, this court notes that in a prior opinion, the court addressed its concerns over the father's veracity. Those concerns were allayed during the hearing. This court accepts his straight-forward testimony and credits it for the purposes of this proceeding. The respondent is 47–years–old, resides with his parents and has done so, apparently, for several years. There is no evidence that he pays any rent or has any other costs associated with living with his parents. He testified that he had about $7,000 in his bank accounts at the time of the hearing. He further testified that most of those funds were derived from student loans. He testified without challenge that the funds in his bank accounts were restricted and said that he could not use these funds for legal expenses. However, he provided no documentation, loan documents, government regulations or the like that would restrict the use of these funds. He provided no documents indicating withdrawals or transfers from the account. He provided no evidence of the cost in tuition of his current education to obtain a doctoral degree in mathematics. He provided no testimony or other evidence of any short-term debt or credit card balances that would indicate an inability to meet his current expenses with his current income.

The father testified that he holds an undergraduate degree in engineering and that he worked as an intern in engineering for about a year after his graduation in 1994.⁴ He then attained a masters degree in mathematics from the University of Buffalo in 1996. Under cross-examination, he acknowledged that he "presently" had the skills of a trained mathematician who could, "apply mathematical theories and techniques to solve practical problems in business, engineering, the sciences and other fields" and "develop mathematical or statistical models to analyze data." After achieving his masters degree, the respondent begin to work on a doctorate in mathematics at the University of Rochester. He pursued that degree for two years and worked as a teaching assistant. He lost his teaching assistant position at the University of Rochester in 1998 because of what he admitted was "poor teaching." The applicant then took a seven-year sabbatical from his education. In that seven-year period of time, between 1998 when he left the University of Rochester until 2005 when he attended Syracuse University, the respondent never held a full-time job; for that matter, there is no evidence that he even attempted to seek any full-time or part-time employment. He testified that he did some adjunct teaching for one quarter at Rochester Institute of Technology.⁵ He also held an adjunct position at Genesee Community College for one semester and a similar position at Monroe Community College. Other than that, there is no evidence that he worked in the period from 1998 to 2005.Under cross-examination the respondent admitted that from 1998 to 2005 he had not applied for any other employment (other than the adjunct teaching positions) and simply studied on his own, even though he was not pursuing a degree. There is no evidence of any income tax returns filed on his behalf to verify the amount of income that he obtained during that time. In 2005, he enrolled in the mathematics doctoral program at Syracuse University. Despite five years there, the respondent failed to obtain an advanced degree and he lost his teaching assistant position because, as he admitted, "they would say poor teaching." There is no evidence that he sought full-time employment at any time during his tenure at Syracuse, and no evidence of any income he earned during that time. He left Syracuse without the degree completed.

The respondent is currently seeking a doctoral degree at the State University of New York at Binghamton. He has been pursuing that degree for five years. He was assigned a teaching assistant position there, but it was discontinued because, as he described it, "of a personal conflict." In response to further questioning, the respondent testified that he met with his advisor once or twice a week during the school year, a factor which would, he inferred, impact his ability to perform full-time work. However, he admitted during the January hearing, that he had only traveled to Binghamton once in the prior three months, and further, he failed to provide any evidence of the costs or...