Winter v. Winter

195 A.D.3d 882

150 N.Y.S.3d 294

Ronald A. WINTER, appellant,

v.Nancy V. WINTER, respondent.

2019–03034, 2019–03035, 2019–03036

Index No. 21546/09

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

Submitted—March 5, 2021

June 16, 2021

Ronald A. Winter, West Babylon, NY, appellant pro se.

Nancy W. Winter, St. Louis, Missouri, respondent pro se.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a matrimonial action, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (John J. Leo, J.), dated November 20, 2018, (2) an order of the same court dated November 21, 2018, and (3) an order of the same court dated January 9, 2019. The order dated November 20, 2018, insofar as appealed from, after a hearing, granted that branch of the defendant's cross motion which was to hold the plaintiff in contempt for wilful violation of an order of support of the same court (Joseph C. Pastoressa, J.) dated June 19, 2013. The order dated November 21, 2018, insofar as appealed from, granted the defendant's motion for an award of attorneys' fees in the sum of $5,000 and denied the plaintiff's cross motion for leave to reargue his opposition to the defendant's prior cross motion, inter alia, to hold him in contempt. The order dated January 9, 2019, granted the defendant's separate motion for an award of attorneys' fees in the sum of $1,000.

ORDERED that the order dated November 20, 2018, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith; and it is further,

ORDERED that appeal from so much of the order dated November 21, 2018, as denied the plaintiff's cross motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 21, 2018, is reversed insofar as reviewed, on the law, without costs or disbursements, and the defendant's motion for an award of attorneys' fees is denied; and it is further,

ORDERED that the order dated January 9, 2019, is reversed, on the law, without costs or disbursements, and the defendant's separate motion for an award of attorneys' fees is denied.

The parties were divorced by judgment dated March 20, 2010. In an order dated June 19, 2013 (hereinafter the 2013 order), the Supreme Court directed the plaintiff to pay child support for the parties' unemancipated son. In 2018, the defendant cross-moved, inter alia, to hold the plaintiff in contempt for wilful violation of the 2013 order. In opposition, the plaintiff admitted that he owed arrears, but contended that his failure to pay in accordance with the 2013 order was not wilful as it arose out of his inability to work due to his medical condition. After a hearing on the issue, the court determined that the plaintiff was in wilful violation of the 2013 order, noting, in part, that the plaintiff offered no medical evidence to support his claim that he was unable to pay child support due to his medical condition, which he contended prevented him from being able to work during the relevant period. In an order dated November 20, 2018, the court, inter alia, granted that branch of the defendant's cross motion which was to hold the plaintiff in contempt for wilful violation of the 2013 order.

Thereafter, in an order dated November 21, 2018, the Supreme Court, among other things, granted the defendant's motion for an award of attorneys' fees incurred in connection with her prior cross motion, inter alia, to hold the plaintiff in contempt in the sum of $5,000, and denied the plaintiff's cross motion for leave to reargue his opposition to the defendant's prior cross motion. In an order dated January 9, 2019, the court, inter alia, granted the defendant's separate motion for an award of attorneys' fees incurred by the defendant in opposing the plaintiff's cross motion for leave to reargue in the sum of $1,000. The plaintiff appeals.

The plaintiff was denied effective assistance of counsel in connection with that branch of the defendant's cross motion which was to hold him in contempt for wilful violation of the 2013 order. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if such proceeding was pending in the Family Court, such court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 order and sought his incarceration (see Judiciary Law § 35[8] ; Family Ct Act § 262 )....