Dinunzio v. Zylinski

• Citation: 175 A.D.3d 1079,108 N.Y.S.3d 634
• Decision Date: 22 August 2019
• Docket Number: 716,CAF 17–01976
• Parties: In the Matter of Michael E. DINUNZIO, Petitioner–Respondent, v. Charlene N. ZYLINSKI, Respondent–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court Appellate Division

175 A.D.3d 1079
108 N.Y.S.3d 634

In the Matter of Michael E. DINUNZIO, Petitioner–Respondent,
v.
Charlene N. ZYLINSKI, Respondent–Appellant. (Appeal No. 1.)

716
CAF 17–01976

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 22, 2019

108 N.Y.S.3d 636

MEMORANDUM AND ORDER

175 A.D.3d 1080

It is hereby ORDERED that said appeal is dismissed except insofar as Charlene N. Zylinski challenges the validity of her waiver of the right to counsel, and the order is affirmed without costs.

Memorandum: Petitioner-respondent father commenced this proceeding pursuant to Family Court Act article 6 seeking, inter alia, an order granting him sole custody of the subject child, and respondent-petitioner mother thereafter filed several petitions seeking various forms of relief, including sole custody of the child. Between the commencement of these proceedings and the beginning of the hearing on the petitions, the mother was represented by a succession of attorneys. During the hearing on the petitions, the mother discharged her final attorney and ultimately proceeded pro se. Later in the hearing, the mother failed to return to the courtroom following a recess and did not appear for the remainder of the hearing. In appeal No. 1, the mother appeals from an order entered upon her default that, inter alia, granted the father sole custody of the child. In appeal Nos. 2–5, the mother appeals from orders, entered upon her default, dismissing her petitions. In appeal No. 6, the mother appeals from an order denying her motion to vacate the order in appeal No. 1.

The mother contends in appeal Nos. 1–5 that Family Court erred in failing to ensure, in response to her request to proceed pro se, that her waiver of the right to counsel was knowing, intelligent, and voluntary. Initially, we conclude that the mother's contention is reviewable on appeal from the orders in appeal Nos. 1–5 despite her default. CPLR 5511 provides, in relevant part, that "[a]n aggrieved party ... may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party." Thus, in general, "[n]o appeal lies from an order [or judgment] entered upon an aggrieved party's default" ( Matter of Anita L. v. Damon N. , 54 A.D.3d 630, 631, 864 N.Y.S.2d 23 [1st Dept. 2008] ; see Matter of Heavenly A. [Michael P.], 173 A.D.3d 1621, 1622, 105 N.Y.S.3d 227 [4th Dept. 2019] ). Nevertheless, "notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those ‘matters which were the subject of contest’ before the [trial court]" ( Tun v. Aw, 10 A.D.3d 651, 652, 782 N.Y.S.2d 96 [2d Dept. 2004], quoting James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 [1967], rearg. denied 19 N.Y.2d 862, 280 N.Y.S.2d 1025, 227 N.E.2d 408 [1967] ; see Heavenly A., 173 A.D.3d at 1622, 105 N.Y.S.3d 227 ).

The question here is whether the validity of the mother's waiver of her right to counsel constitutes a matter that was

175 A.D.3d 1081

the subject of contest before the court. New York State law recognizes that "[p]ersons involved in certain family court proceedings may face the infringements of fundamental interests and rights, including the loss of a child's society ..., and therefore have a constitutional right to counsel in such proceedings" ( Family Ct Act § 261 ; see Carney v. Carney, 160 A.D.3d 218, 224, 73 N.Y.S.3d 694 [4th Dept. 2018] ). Parties entitled to counsel include, as pertinent here, any person seeking custody of his or her child or "contesting

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the substantial infringement of his or her right to custody of such child" (§ 262[a][v] ). When determining whether a party may properly waive the right to counsel in favor of proceeding pro se, the trial court, "[i]f a timely and unequivocal request has been asserted, ... is obligated to conduct a ‘searching inquiry’ to ensure that the [party's] waiver is knowing, intelligent, and voluntary" ( Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 [2011] ; see e.g. Martinez v. Gomez–Munoz, 154 A.D.3d 1085, 1085, 62 N.Y.S.3d 214 [3d Dept. 2017] ; Matter of Girard v. Neville , 137 A.D.3d 1589, 1590, 26 N.Y.S.3d 897 [4th Dept. 2016] ). In other words, such a request for relief triggers the obligation of the court, which is permitted to grant the relief only upon "a showing on the record of a knowing, voluntary and intelligent waiver of the [right to counsel]" ( Matter of Storelli v. Storelli , 101 A.D.3d 1787, 1788, 958 N.Y.S.2d 249 [4th Dept. 2012] [internal quotation marks omitted] ). For that reason, we conclude that such a request by a party to waive the right to counsel and proceed pro se, as the mother made here, places in issue whether the court fulfilled its obligation to ensure a valid waiver. Even beyond that, the record here supports the conclusion that whether the mother validly waived her right to counsel was a contested issue before the court. Specifically, the day after the court initially allowed the mother to proceed pro se, the father's attorney questioned whether the mother should be representing herself, and the court—making a record of its prior consideration of that issue—determined that it had appropriately warned the mother and that, despite the warning, the mother knowingly opted for self-representation. Based on the foregoing, we conclude that "[t]he issue of the mother's waiver of the right to counsel was the subject of contest before ... [the c]ourt and, therefore, may be reviewed by this Court in [appeal Nos. 1–5]" ( Matter of Graham v. Rawley , 140 A.D.3d 765, 766–767, 33 N.Y.S.3d 371 [2d Dept. 2016], lv dismissed in part and denied in part 28 N.Y.3d 955, 38 N.Y.S.3d 524, 60 N.E.3d 420 [2016] ).

The criticism of our conclusion in the first dissent (Curran, J.) is flawed. The central assertion of the first dissent is that the mother's challenge to the validity of her waiver of the right to counsel is not reviewable on appeal from the orders in appeal Nos. 1–5 because the mother "received precisely the relief

175 A.D.3d 1082

she sought," i.e., permission to proceed pro se, and therefore is not aggrieved. That assertion misconstrues the issue on appeal. The mother, of course, does not and could not contend on appeal that the court erroneously denied the requested relief of proceeding pro se. Rather, she contends that the court erred in failing to ensure, in response to her request, that her waiver of the right to counsel was knowing, voluntary, and intelligent. Although the mother certainly requested to proceed pro se and received such relief, we have previously explained that "a showing on the record of a knowing, voluntary and intelligent waiver of the [right to counsel]" was a prerequisite to the court's grant of that relief ( Storelli, 101 A.D.3d at 1788, 958 N.Y.S.2d 249 ). The first dissent's assertion that the mother is not aggrieved because she was permitted to represent herself as she requested assumes that the mother made "a knowing, voluntary and intelligent choice" in obtaining that relief ( Girard, 137 A.D.3d at 1590, 26 N.Y.S.3d 897 ). That issue, for the reasons previously stated, was the subject of contest before the court and is therefore reviewable on appeal from the orders in appeal Nos. 1–5 (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 ; Heavenly A., 173 A.D.3d at 1622, 105 N.Y.S.3d 227 ; Graham, 140 A.D.3d at 766–767, 33 N.Y.S.3d 371 ). We also note

108 N.Y.S.3d 638

that the first dissent ignores that the issue whether the mother validly waived her right to counsel was raised on the record and the court articulated its determination on that issue. Based on the foregoing, we are unpersuaded by the first dissent's assertions that the rule stated in James and its progeny is not a "proper channel[ ]" through which we may review the mother's challenge to the validity of her waiver of the right to counsel in appeal Nos. 1–5 and that we are improperly "circumventing the default."

We likewise reject the reading of the rule in James advocated by the second dissent (Carni, J.). The second dissent's narrow reading conflates the language setting forth the rule with that describing the particular procedural and factual posture of the case (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 ).

We nonetheless conclude upon review of the mother's challenge to the validity of her waiver of the right to counsel that it lacks merit. As previously stated, "[w]here a party unequivocally and timely asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary" ( Matter of Aleman v. Lansch , 158 A.D.3d 790, 792, 72 N.Y.S.3d 122 [2d Dept. 2018] ; see Kathleen K., 17 N.Y.3d at 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ; Martinez, 154 A.D.3d at 1085, 62 N.Y.S.3d 214 ). "A ‘searching inquiry’ does not have to be made in a formulaic manner" ( Kathleen K., 17 N.Y.3d at 386, 929 N.Y.S.2d 535, 953 N.E.2d 773 ). Importantly, "there is no rigid formula...