Silvestris v. Silvestris

• Decision Date: 16 December 1965
• Citation: 24 A.D.2d 247,265 N.Y.S.2d 173
• Parties: : Dorothy SILVESTRIS, Petitioner-Respondent, v. Frank SILVESTRIS, Respondent-Appellant. Supreme Court, Appellate Division, First Department
• Court: New York Supreme Court — Appellate Division

Page 173

265 N.Y.S.2d 173

24 A.D.2d 247

In the Matter of a proceeding for support under Article 4 of the Family Court Act: Dorothy SILVESTRIS Petitioner-Respondent, v. Frank SILVESTRIS, Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 16, 1965.

David N. Goldman, New York City, for appellant.

Bernard Burstein, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Leo A. Larkin, Corporation Counsel) for respondent.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER, and STEUER, JJ.

BALENTE, Justice.

This is an appeal from an order of the Family Court, Bronx County, directing appellant to pay $30 per week for the support of his eleven year old daughter.

The proceeding was commenced in the Family Court, Greene County, where the petitioner and the daughter resided. Appellant, the father of the child, resided in Bronx County. The matter was transferred to the Family Court, Bronx County, pursuant to the provisions of the Uniform Support of Dependents Law (Art. 3-A of the Domestic Relations Law). Section 35(1) of The Domestic Relations Law provides that a support proceeding under the Uniform Act may be maintained where petitioner and respondent are residents of different counties in the same state. However, under Section 37(2), if the Court can acquire jurisdiction of the person of respondent under the existing laws of the state in which both parties reside 'such laws shall govern and control the procedure to be followed in such proceeding.' Since the Family Court may send process in any matter in which it has jurisdiction into any county of this State (Family Court Act, Sce. 154), the Family Court Act would govern and control the procedure to be followed in this proceeding. (See also Family Court Act, Sections 174 and 411.) Consequently, the validity of the order appealed from must be considered in relation to the procedural requirements of the Family Court Act.

Section 433 of the Family Court Act provides that upon the return of the summons in a support proceeding, the Court shall proceed to hear and determine the cause and that the respondent 'shall be informed of the contents of the petition, advised of his right to counsel, and shall be given opportunity to be heard and to present witnesses.' Unquestionably, appellant was informed of the contents of the petition. In fact, he admitted he was served with a copy of the petition.

So, too, it appears that at the commencement of the hearing, the Family Court Judge inquired if appellant was prepared to proceed or if he wanted 'time to get a lawyer'. Appellant elected to proceed pro se. The right to be advised of a right to counsel does not deprive a person of his right to elect to proceed without counsel. (See Adams v. U. S. ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435.) Hence, there was in the instant proceeding a knowledgeable waiver of the right to counsel and an election by appellant to conduct his case pro se. To draw an adalogy with criminal prosecutions, there was an unqualified right of appellant to act as his own lawyer. (See United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965).)

It was only toward the conclusion of the hearing that appellant sought a postponement until he could obtain a lawyer. Having made an intelligent election at the commencement of the hearing to decline the aid of counsel, appellant could not, as a matter of right, thereafter interrupt and delay the hearing at a much later stage to demand legal assistance. (People v. Guber, 201 Misc. 852, 113 N.Y.S.2d 192, affd. 1 A.D.2d 876, 150 N.Y.S.2d 543; Matter of Connor, 16 Cal.2d 701, 709, 108 P.2d 10, cert. denied Connor v. California, 313 U.S. 542, 61 S.Ct 844, 85 L.Ed. 1510.) The right to counsel must be exercised in conformity with orderly procedure. When the right is asserted after proceedings have been begun, following an election to go to trial without counsel, it rests within the discretion of the trial judge to determine whether to grant such request. As stated in United States ex rel. Maldonado v. Denno, supra, 348 F.2d p. 15 (which involved the right of a defendant to discharge his lawyer after a trial had begun and to represent himself);

'There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance.'

Hence, we find no error in the tacit refusal of the Family Court Judge to adjourn the hearing to permit appellant to obtain counsel at the stage of the trial at which the request was made. Although we reverse on another ground, we nevertheless have discussed this aspect of the case as a guide for procedure in the Family Court in similar circumstances.

As already noted, Section 433 of the Family Court Act requires that a respondent 'shall be given opportunity to be heard and to present witnesses.' This Court in Schwartz v. Schwartz, 23 App.Div.2d 204, 259 N.Y.S.2d 751, pointed out that as a correlative to the increased power and jurisdiction of the Family Court, 'procedures should, as consistently as possible, conform to the spirit of the CPLR without necessarily importing into Family Court proceedings punctiliousness or the complexities and technical requirements of the CPLR'. (p. 206, 259 N.Y.S.2d p. 753). It was also said in that case (at p. 207, 259 N.Y.S.2d p. 754):

'A hearing need not follow any particular form, but any meaningful hearing must, at least, consist of an adducement of proof coupled with an opportunity to rebut it.'

We have concluded that while the hearing judge undertook to give appellant a hearing, the omission to advise appellant, who was appearing pro se, of his right to cross-examine and to produce witnesses deprived him of an adequate hearing. Thus, there was no opportunity offered appellant to rebut the averments of petitioner. On the record before this Court, it appears that appellant was not accorded his statutory right, granted by Section 433, of an 'opportunity to be heard and to present witnesses.' (See City of New York on Complaint of (Sullivan) v. Sullivan, 246 App.Div. 55, 284 N.Y.S. 119.)

Section 413 of the Family Court Act dealing with a father's duty to support his child provides that the father may be required to pay for the support of the child 'a fair and reasonable sum according to his means, as the court may determine'. The measure of the extent of that obligation is 'the child's needs in relation to the father's...