Mulligan v. Mulligan

• Decision Date: 11 July 1991
• Parties: In the Matter of Beatrice MULLIGAN, Appellant, v. Michael MULLIGAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 91

572 N.Y.S.2d 91

175 A.D.2d 335

In the Matter of Beatrice MULLIGAN, Appellant, v. Michael MULLIGAN, Respondent.

Supreme Court, Appellate Division Third Department.

July 11, 1991.

Steven H. Kurlander, Monticello, for appellant.

Michael Mulligan, in pro. per.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and MERCURE, JJ.

MERCURE, Justice.

Appeal from an order of the Family Court of Sullivan County (Traficanti Jr., J.), entered March 28, 1990, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 6, to find respondent in violation of a prior order of visitation.

Petitioner commenced this proceeding claiming that respondent and his wife, Patricia Rivera, interfered with petitioner's phone calls to her three children and that respondent and Rivera used drugs and alcohol and mentally and physically abused the children. Both parties appeared pro se. Following a hearing, Family Court dismissed the petition with prejudice and ordered petitioner not to file any further petitions unless represented by counsel at the time of filing or Family Court would review any petitions filed before any process would be issued. Petitioner appeals.

Initially, Family Court did not abuse its discretion in denying petitioner's application to exclude the children and Rivera during the proceeding (see, 22 NYCRR 205.4). We also reject petitioner's claim that Family Court erred in dismissing the petition. Given that the matter "turns almost entirely on assessments of the credibility of the witnesses * * * the findings of the nisi prius court must be accorded the greatest respect" (Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337). Our own examination of the record establishes that Family Court's determination that respondent and Rivera were not shown to have interfered with visitation and phone calls conforms to the weight of the evidence.

Finally, we find merit in petitioner's claim that Family Court improperly prohibited her from filing future pro se petitions unless such petitions are reviewed by the court before service of process. Although Family Court has authority to limit a petitioner's right to proceed pro se in extreme cases (see, Muka v. New York State Bar Assn., 120 Misc.2d 897, 903, 466 N.Y.S.2d 891; Matter of Rappaport, 109 Misc.2d 640, 642, 440 N.Y.S.2d 532; see also, People v. McIntyre, 36 N.Y.2d 10, 15, 364 N.Y.S.2d 837, 324 N.E.2d 322), any restriction upon such right must be carefully scrutinized ( see, Walker & Bailey v. We Try Harder, 123 A.D.2d 256, 257, 506 N.Y.S.2d 163; see also, Bounds v. Smith, 430 U.S. 817, 821-822, 97 S.Ct. 1491, 1494-1495, 52 L.Ed.2d 72; 2 Weinstein-Korn-Miller, N.Y.Civ.Prac. p...