Hughes v. Gallup-Hughes

• Decision Date: 01 December 2011
• Citation: 935 N.Y.S.2d 149,90 A.D.3d 1087,2011 N.Y. Slip Op. 08690
• Parties: Ian W. HUGHES, Respondent, v. Marcy GALLUP–HUGHES, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08690
90 A.D.3d 1087
935 N.Y.S.2d 149

Ian W. HUGHES, Respondent,
v.
Marcy GALLUP–HUGHES, Appellant.

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

Dec. 1, 2011.

[935 N.Y.S.2d 150]

Cooper, Erving & Savage, L.L.P., Albany (Phillip G. Steck of counsel), for appellant.

Law Offices of Ian R. Arcus, Albany (Kelly L. Egan of counsel), for respondent.

Cheryl Maxwell, Plattsburgh, attorney for the child.

Before: SPAIN, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ.

STEIN, J.

[90 A.D.3d 1087] Appeal from an order of the Supreme Court (Powers, [90 A.D.3d 1088] J.), entered June 23, 2010 in Schenectady County, which, among other things, awarded custody of the parties' child to plaintiff.

Plaintiff (hereinafter the father) and defendant (hereinafter the mother) are the parents of a son (born in 2001). The father commenced this divorce action in January 2009 seeking, among other things, custody of the child. In February 2010, Supreme Court awarded the parties, as relevant here, temporary joint legal custody with primary physical custody to the father and specified parenting time with the mother.

Following a nonjury trial in May 2010, after finding that joint custody was not feasible due to the parties' inability to communicate, exacerbated by the mother's hostility towards the father, Supreme Court awarded the father sole legal custody of the child and continued the parenting schedule provided in the temporary order, with additional provisions relating to holidays and birthdays. The mother now appeals and we affirm.

Preliminarily, we note that this appeal has not been rendered moot by a subsequent Family Court order which resolved custody enforcement and family offense petitions filed by the parties. That order was issued upon stipulation and clarified existing provisions of the order appealed from concerning communication

[935 N.Y.S.2d 151]

and notice, while leaving intact the provisions of the order on appeal with respect to legal custody and parenting time. Accordingly, there is no basis to conclude that the mother relinquished her right to pursue this appeal ( see Matter of Siler v. Wright, 64 A.D.3d 926, 928, 882 N.Y.S.2d 574 [2009] ).

Nor are we persuaded by the mother's contention that her rights were violated when she was allowed to represent herself at the nonjury trial. There is no constitutional right to counsel in a matrimonial action ( see Matter of Smiley, 36 N.Y.2d 433, 439, 369 N.Y.S.2d 87, 330 N.E.2d 53 [1975]; Potter v. MacLean, 75 A.D.3d 686, 687, 904 N.Y.S.2d 551 [2010] ) and pro bono assignment of counsel is discretionary ( see Matter of Smiley, 36 N.Y.2d at 441, 369 N.Y.S.2d 87, 330 N.E.2d 53). Here, the mother acknowledged that she probably did not qualify for assigned counsel. In addition, the record reflects that the mother worked in the federal court system, had previously appeared in the proceedings with counsel and had engaged in protracted negotiations with the father's counsel. While there was minimal...