CHANCE v. CHANCE (2026)

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from stated portions of a judgment of divorce of the Supreme Court, Nassau County (Edmund M. Dane, J.), dated March 2, 2023.  The judgment of divorce, upon a decision of the same court dated August 19, 2022, made after a nonjury trial, inter alia, (1) awarded sole legal and physical custody of the parties' child to the defendant, with supervised parental access to the plaintiff, (2) directed the plaintiff to pay child support in the sum of $700 per month, (3) awarded the entirety of the defendant's 401(k) account to the defendant, and (4) awarded the defendant counsel fees in the amount of $17,500.

ORDERED that the appeal is dismissed, without costs or disbursements, except with respect to matters which were the subject of contest below (see CPLR 5511;  Matter of Navyiah Sarai U. [Erica U.], 211 AD3d 959, 960);  and it is further,

ORDERED that the judgment of divorce is affirmed insofar as reviewed, without costs or disbursements.

In 2019, the plaintiff (hereinafter the father) commenced this action for a divorce and ancillary relief, and issue was joined with the filing of the defendant's answer, in which she also asserted a counterclaim for a divorce.  The trial in this matter commenced on February 23, 2022, and the father, proceeding pro se, made an opening statement and thereafter was permitted to testify in narrative form.  The trial was adjourned to February 25, 2022, and thereafter adjourned, at the father's request, to April 5, 2022, and then to July 12, 2022.  Prior to July 12, 2022, the father requested another adjournment, and the Supreme Court denied the request.  On July 12, 2022, the father failed to appear for the continued trial.  By judgment of divorce dated March 2, 2023, upon a decision dated August 19, 2022, the court, inter alia, (1) awarded sole legal and physical custody of the parties' child to the defendant, with supervised parental access to the father, (2) directed the father to pay child support in the sum of $700 per month, (3) awarded the entirety of the defendant's 401(k) account to the defendant, and (4) awarded the defendant counsel fees in the amount of $17,500.  The father appeals.

Since the judgment of divorce was made upon the father's default, review is limited to matters which were the subject of contest in the Supreme Court (see CPLR 5511;  U.S. Bank N.A. v. Marte, 238 AD3d 938, 940;  Matter of Navyiah Sarai U. [Erica U.], 211 AD3d 959, 960).  Accordingly, review is limited to the court's denial of the father's request for assigned counsel, issues raised on the first day of trial, and his request for an adjournment of the trial (see Matter of Demetrious L.K. [James K.], 157 AD3d 796, 796;  Matter of Munoz v. Edmonds–Munoz, 123 AD3d 1038, 1039).

The parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child has the right to the assistance of counsel (see Family Ct Act § 262[a][v];  Judiciary Law § 35).  “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” (Matter of Picitelli v. Carbone, 208 AD3d 582, 584 [internal quotation marks omitted];  see Matter of Cook v. Sierra, 190 AD3d 732, 733).  However, “[a] party may forfeit the fundamental right to counsel by engaging in egregious conduct, but only as a matter of extreme, last resort” (Matter of Sa'Nai F.B.M.A., 232 AD3d 597, 599 [internal quotation marks omitted];  see People v. Smith, 92 N.Y.2d 516, 521).  A party “does not forfeit the right to counsel simply by being argumentative or uncooperative with counsel or by moving to reassign counsel as a mere dilatory tactic” (People v. Shanks, 37 NY3d 244, 254 [internal quotation marks omitted] ).  However, “[t]here may be circumstances where a [party with a fundamental right to counsel] who refuses to cooperate with successive assigned attorneys is ultimately deemed to have forfeited the right to assigned counsel, although such an individual must be afforded the opportunity to retain counsel” (id.).

Under the circumstances of this case, the Supreme Court properly concluded that the father forfeited his right to assigned counsel.  In denying the father's request, the court explained that the father was represented by nine attorneys over the course of this matter, six of whom were assigned counsel, and detailed the delay caused each time the defendant was assigned a new attorney.  Moreover, at least four of the attorneys assigned to represent the father were relieved at his request or with his consent and, in their requests to be relieved, asserted, among other things, that the father directed them to engage in sanctionable conduct and was uncooperative and disrespectful.  The father's apparent inability to cooperate with multiple assigned counsel and his conduct during the pendency of this action, which caused delay, constitute the sort of egregious conduct justifying a finding that he forfeited his right to assigned counsel even without the “searching inquiry” that is ordinarily required (see Matter of Carilyn S. v. Theresa S., 248 AD3d 1256, 1257;  Matter of Holder v. Francis, 67 AD3d 679, 680;  see also Matter of Micah T. [Josette D.], 171 AD3d 546;  Matter of Montrell A.D. [Miguel D.], 161 AD3d 411, 411–412;  Matter of Rodney W. v. Josephine F., 126 AD3d 605).

On the first day of trial, the Supreme Court sustained several objections by the defendant's attorney to testimony and evidence offered by the father.  These rulings were also the subject of contest in the Supreme Court and, thus, may be considered by this Court (see Geffner v Mercy Med. Ctr., 167 AD3d 571, 572).  However, the father's challenges to the Supreme Court's rulings are without merit.  The father was not entitled to any greater rights than those afforded to other litigants because he was proceeding pro se, and the Supreme Court properly required him to comply with evidentiary rules (see Matter of Martinez v Gaddy, 223 AD3d 816, 819).  The father's contention that the Supreme Court failed to take judicial notice of certain material is unpreserved for appellate review.

The granting of an adjournment rests in the sound discretion of the trial court upon a balanced consideration of all relevant factors (see Matter of Panizo v. Douglas, 235 AD3d 876, 877;  Matter of Neferteir A.R. [Jesse R.R.], 221 AD3d 605, 606).  Here, the proceedings were delayed due to multiple requests by the father for the assignment of new counsel, which were granted by the Supreme Court, and the court further had granted the father multiple additional adjournments for health reasons.  Moreover, the father failed to offer a satisfactory explanation for his absence on the scheduled trial date.  Under the circumstances, the court providently exercised its discretion in denying the father's request for an adjournment of the trial (see Matter of Ryan [Jessica D.-Timothy A.], 215 AD3d 857, 858;  Hawes v. Lewis, 127 AD3d 921, 922).

BRATHWAITE NELSON, J.P., DOWLING, TAYLOR and LOVE, JJ., concur.