Saber v. Saccone

CourtNew York Supreme Court Appellate Division
Citation192 A.D.3d 1400,145 N.Y.S.3d 182
Docket Number525587
Parties In the Matter of Parvaz Ahmad SABER, Appellant, v. Ellen T. SACCONE, Respondent. (Proceeding No. 1.) In the Matter of Ellen T. Saccone, Respondent, v. Parvaz Ahmad Saber, Appellant. (Proceeding No. 2.)
Decision Date25 March 2021

Lisa A. Burgess, Indian Lake, for appellant.

Essex County Department of Social Services, Elizabethtown (David D. Scaglione of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeals (1) from an order of the Family Court of Essex County (Meyer, J.), entered August 17, 2017, which, among other things, dismissed petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 4, to modify a prior order of support, and (2) from an order of said court, entered October 16, 2017, which granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior order of support, and committed respondent to jail for 100 days.

Parvaz Ahmad Saber (hereinafter the father) and Ellen T. Saccone (hereinafter the mother) are the parents of two children (born in 2002 and 2005). Under a 2009 child support order, the father is required to pay the mother $95 per week plus 40% of child-care expenses. In January 2016, the father commenced proceeding No. 1 seeking a downward modification of the 2009 support order. The mother later commenced proceeding No. 2 alleging that the father willfully violated the support order by failing to make regular payments and had accrued over $20,000 in arrears. Following many appearances and an April 2017 hearing on both petitions, the Support Magistrate, in separate orders, dismissed the father's modification petition for failure to prove a cause of action, found the father in willful violation of the 2009 support order, entered a money judgment in favor of the mother and recommended a suspended 100–day commitment to jail.

In an August 2017 order, Family Court denied the father's objections to the order dismissing his modification petition. Before the confirmation hearing on the willful violation finding, Family Court granted the father's application to have his assigned counsel relieved, but advised the father that no further counsel would be assigned to him and he would have to retain counsel or represent himself. Despite stating that he would retain counsel, the father thereafter appeared without counsel at the confirmation hearing. In an October 2017 order, Family Court confirmed the willful violation finding, imposed a 100–day jail commitment without suspension and set a purge amount of $24,700. The father appeals from the August 2017 and October 2017 orders.

Pursuant to Family Ct Act § 451(3), a court may modify a child support order where, since the entry of that order, there has been a substantial change in circumstances, three years have passed or either party's gross income has changed by 15% or more (see Matter of Siouffi v. Siouffi, 186 A.D.3d 1789, 1790, 131 N.Y.S.3d 406 [2020], lv dismissed and denied 36 N.Y.3d 1042, 140 N.Y.S.3d 473, 164 N.E.3d 279 [2021] ). The latter two grounds are unavailable where, as here, the order at issue was entered prior to the 2010 enactment of the statutory provision creating those grounds (see L 2010, ch 182, § 13; Matter of Baltes v. Smith, 111 A.D.3d 1072, 1073–1074, 975 N.Y.S.2d 782 [2013] ). Here, "the father bore the burden of showing a substantial change in circumstances warranting a downward modification of his child support obligation" ( Matter of Siouffi v. Siouffi, 186 A.D.3d at 1790, 131 N.Y.S.3d 406 ). "The determination of whether there has been a substantial change in circumstances requires that the court compare the petitioner's financial circumstances at the time of the previous order with his or her financial circumstances at the time of his or her application for modification so as to determine an ability to provide support" ( Matter of Jeffers v. Jeffers, 133 A.D.3d 1139, 1140, 20 N.Y.S.3d 691 [2015] [internal quotation marks, brackets and citations omitted]; see Matter of Freedman v. Horike, 68 A.D.3d 1205, 1206, 891 N.Y.S.2d 173 [2009], lv dismissed and denied 14 N.Y.3d 811, 899 N.Y.S.2d 751, 926 N.E.2d 255 [2010] ; Matter of Heyn v. Burr, 6 A.D.3d 781, 782, 774 N.Y.S.2d 203 [2004] ).

The father testified that he has been unemployed since late 2010, was denied unemployment insurance and, since then, has earned only a few hundred dollars in each of two years. He and his family were evicted from their apartment and have been approved for public assistance, but they have only accepted public health insurance benefits. The father testified regarding his efforts to obtain employment in his field, albeit with few direct contacts and only within a limited realm, including none in minimum wage employment. He stated that the only money he had earned in the prior four years was through a marketing opportunity created by a friend. The father's wife owns a store, in which he has a 0.5% ownership interest, and the family now lives in the basement of that business, but the father testified that he has nothing to do with the store and never works at the counter; he later testified that he sometimes delivers documents for the business because his culture does not allow his wife to deal with men outside their family. He had not applied for disability benefits, despite his testimony that he suffered joint pain that prevented him from doing many activities – including driving, sitting or standing for more than a few minutes – and there was no admissible medical proof submitted to support these claims.

The Support Magistrate found much of the father's testimony incredible, including his lack of involvement with his wife's store, especially considering his testimony that he spends all day and night in the basement trying to find a job. We find no error in the Support Magistrate's refusal to admit into evidence the medical records proffered by the father, as they lacked the required certification or authentication (see CPLR 4518[c] ; Matter of Columbia County Support Collection Unit v. Demers, 29 A.D.3d 1092, 1093, 814 N.Y.S.2d 802 [2006], lv denied 7 N.Y.3d 708, 822 N.Y.S.2d 482, 855 N.E.2d 798 [2006] ). According deference to the credibility determinations of the Support Magistrate and Family Court, including that the father did not engage in diligent efforts to obtain employment and failed to present competent medical proof of his inability to work (see Matter of Vickery v. Vickery, 63 A.D.3d 1220, 1221, 880 N.Y.S.2d 724 [2009] ; Matter of Rosalind EE. v. William EE., 4 A.D.3d 629, 630, 772 N.Y.S.2d 127 [2004], lv denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665 [2004] ), Family Court properly dismissed the father's modification petition (see Matter of Freedman v. Horike, 68 A.D.3d at 1207, 891 N.Y.S.2d 173 ; Matter of Bianchi v. Breakell, 48 A.D.3d 1000, 1003, 852 N.Y.S.2d 454 [2008] ).

The father further contends that Family Court violated his right to counsel at the confirmation hearing. An indigent person accused of a willful violation of a prior support order has the right to assigned counsel (see Family Ct Act § 262[a][vi] ; Matter of Clark v. Clark, 101 A.D.3d 1394, 1395, 956 N.Y.S.2d 645 [2012] ), although " ‘this entitlement does not encompass the right to counsel of one's own choosing’ " ( Matter of Tarnai v. Buchbinder, 132 A.D.3d 884, 886, 18 N.Y.S.3d 143 [2015], quoting People v. Porto, 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). Whether to grant substitution of counsel or an adjournment to obtain or consult with counsel falls within the discretion of the court, upon good cause shown (see Matter of Lillian SS. [Brian SS.], 146 A.D.3d 1088, 1093–1094, 45 N.Y.S.3d 640 [2017], lvs denied 29 N.Y.3d 919, 992, 64 N.Y.S.3d 670, 86 N.E.3d 562 [2017] ; Matter of Tarnai v. Buchbinder, 132 A.D.3d at 886, 18 N.Y.S.3d 143 ). Such determinations "are necessarily case-specific," and courts consider, among other things, "the timing of the request, its effect on the progress of the case and whether present counsel will likely provide meaningful assistance" ( Matter of Lillian SS. [Brian SS.], 146 A.D.3d at 1093, 45 N.Y.S.3d 640 [internal quotation marks, ellipses and citation omitted]).

"A party to a Family Court proceeding who has the right to be represented by counsel may only proceed without counsel if that party has validly waived his or her right to representation" ( Matter of Tarnai v. Buchbinder, 132 A.D.3d at 886, 18 N.Y.S.3d 143 [citations omitted]). "Waiver of that right must be explicit and intentional, and the court must assure that it is made knowingly, intelligently and voluntarily. This requires that the trial court perform a searching inquiry to determine whether a party is aware of the dangers and disadvantages of proceeding without counsel, which might include inquiry into the party's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver" ( Matter of Clark v. Clark, 101 A.D.3d at 1395, 956 N.Y.S.2d 645 [internal quotation marks and citations omitted]; see Matter of Angela H. v. St. Lawrence County Dept. of Social Servs., 180 A.D.3d 1143, 1145, 120 N.Y.S.3d 481 [2020] ; Matter of Ryan v. Alexander, 133 A.D.3d 605, 606, 18 N.Y.S.3d 717 [2015] ).

Here, Family Court – apparently referring not only to these two proceedings but to prior support proceedings and ongoing custody proceedings between the parties – noted that the father had been represented by seven different attorneys, including four assigned by the court. When the father requested that his last assigned counsel be relieved, counsel stated that he was willing to continue his representation or operate as standby counsel. The court refused this...

To continue reading

Request your trial
3 cases
  • Sherrod v. Mount Sinai St. Luke's
    • United States
    • New York Supreme Court
    • 27 Abril 2022
    ... ... 415.2[f][1][iii]; see generally Grasso v Angerami, ... 79 N.Y.2d 813, 814; Matter of Saber v Saccone, 192 ... A.D.3d 1400, 1402; Anghel v Ruskin Moscou Faltischek, ... P.C., 190 A.D.3d 906, 908; Matter of Johnson v ... ...
  • Valvo v. Valvo
    • United States
    • New York Supreme Court — Appellate Division
    • 6 Julio 2023
    ... ... appropriate deference to the credibility determinations of ... the Support Magistrate and Family Court (see Saber v ... Saccone, 192 A.D.3d 1400, 1402 [3d Dept 2021], lvs ... denied 37 N.Y.3d 909 [2021]; see also Matter of ... Latimer v Cartin, 57 A.D.3d 1264, ... ...
  • McKenzie v. Berkovitch
    • United States
    • New York Supreme Court — Appellate Division
    • 25 Marzo 2021

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT