DeMarco v. Raftery, 242 A.D.2d 625 (N.Y. App. Div. 1997). · Go Syfert
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DeMarco v. Raftery, 242 A.D.2d 625 (N.Y. App. Div. 1997). Cases Citing This Book View Copy Cite
18 citation events (16 in the last 25 years) across 2 distinct courts.
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Carney v. Carney
N.Y. App. Div. · 2018 · confidence medium
That interpretation is logically and legally cogent because the concern addressed in the relevant legislation is whether a party currently possesses the financial ability to obtain private counsel to represent him or her in the immediate, impending legal proceeding, not whether the party should have such an ability or may have such an ability in the future ( see generally People v Simmons , 31 NY2d 997, 997-998 [1973]; Matter of DeMarco v Raftery , 242 AD2d 625, 626 [2d Dept 1997]).
discussed Cited as authority (rule) Scott v. Scott
N.Y. App. Div. · 2009 · confidence medium
The right to counsel implies that the court will afford a respondent and his or her attorney a reasonable opportunity to appear and present evidence and arguments (see Matter of Keenan v Keenan, 51 AD3d at 1077 ; Matter of DeMarco v Raftery, 242 AD2d 625, 626 [1997]).
discussed Cited as authority (rule) Sutton-Murley v. O'Connor
N.Y. App. Div. · 2009 · confidence medium
Respondent subsequently became unemployed, applied for and was assigned an attorney to represent him, and counsel was provided with a full opportunity to submit proof on the issue of respondent’s inability to make the required child support payments (compare Matter of Keenan v Keenan, 51 AD3d 1075, 1077-1078 [2008]; Matter of DeMarco v Raftery, 242 AD2d 625, 626-627 [1997]).
discussed Cited as authority (rule) Keenan v. Keenan
N.Y. App. Div. · 2008 · confidence medium
“The right of counsel implies that the court will give a respondent and his [or her] counsel a reasonable opportunity to appear and present evidence and arguments” (Matter of DeMarco v Raftery, 242 AD2d 625, 626 [1997] [citation omitted]).
discussed Cited as authority (rule) Brunelle v. Bibeau (2×)
N.Y. App. Div. · 2005 · confidence medium
Indeed, when the Support Magistrate recused himself at respondent’s first appearance, he advised respondent of the right to be represented by counsel, but specifically noted that “the violation petition [did] not allege a willful failure to comply with the court order, so there’s no right to assign[ed] counsel.” * Next, we find that Family Court’s summary denial of respondent’s request for an adjournment of the hearing in or der to obtain counsel effectively deprived him of the right to counsel, which inures to all persons facing incarceration for violation of a court order, includ…
discussed Cited as authority (rule) Fralix v. Thornock
N.Y. App. Div. · 2004 · confidence medium
At the court proceedings when petitioner was present without counsel, no hearings were held, and the court resolved only temporary issues of visitation (cf. Matter of DeMarco v Raftery, 242 AD2d 625, 626 [1997]).
discussed Cited "see" Matter of Worsdale v. Holowchak
N.Y. App. Div. · 2019 · signal: see · confidence high
Although the court later assigned the father an attorney, the court failed to provide the "attorney a reasonable opportunity to appear," as the court assigned the attorney midway through the final court appearance, after the fact-finding hearing had concluded, after the Support Magistrate had made its credibility and factual findings, and after the court had decided to incarcerate the father ( Matter of Scott v Scott , 62 AD3d 714, 715 ; see Matter of DeMarco v Raftery , 242 AD2d 625, 626-627 ).
discussed Cited "see" People ex rel. Constantino v. Lorey
N.Y. App. Div. · 2006 · signal: see · confidence high
Moreover, as more recently noted by this Court, “due process requires that, in contempt proceedings, the contemnor be afforded ‘an opportunity to be heard at a meaningful time and in a meaningful manner’ ” (Matter of Mosso v Mosso, 6 AD3d 827, 829 [2004] [citation omitted]; see Matter of DeMarco v Raftery, 242 AD2d 625, 626 [1997]; People ex rel.
discussed Cited "see, e.g." New York County Lawyers' Ass'n v. State
N.Y. Sup. Ct. · 2003 · signal: see also · confidence low
Id. at 335 (finding in section 262 a “right, expressly conferred by the Legislature to have * * * counsel present from the time of [the client’s] appearance”) (citation omitted); see also, e.g., Matter of DeMarco v Raftery, 242 AD2d 625 (2d Dept 1997) (in child support proceeding involving willful violation of an order, appointment of counsel at a late stage in the proceedings violated respondent’s right to counsel). .
discussed Cited "see, e.g." Gaudette v. Gaudette
N.Y. App. Div. · 1999 · signal: see also · confidence low
Although Family Court’s dismissal of the modification petition was proper notwithstanding the absence of counsel (see, Matter of Kissel v Kissel, supra, at 1037; see also, Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 262, at 312), this matter shall be remitted to Family Court for a new hearing on the violation petition (see, Matter of Brainard v Brainard, supra, at 996) since it subjected petitioner to the possibility of incarceration (see, Matter of DeMarco v Raftery, 242 AD2d 625, 626 ).
Retrieving the full opinion text from the archive…
In the Matter of Carol DeMarco
v.
John Raftery
Appellate Division of the Supreme Court of the State of New York.
Sep 22, 1997.
242 A.D.2d 625
Cited by 15 opinions  |  Published

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Balkin, J.), dated November 22, 1996, which confirmed the determination of the same court (Watson, H.E.), dated October 8, 1996, finding that he had willfully failed to obey an order of the court, dated October 16, 1992, and thereupon sentenced him to 60 days in the Nassau County Correctional Center, unless he purged himself of his contempt by paying the sum of $9,720 towards child support arrears.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court for further proceedings in accordance herewith.

The appellant father had a pre-existing obligation to pay child support in the sum of $100 per week. He claims that he met this obligation for as long as he was employed, but that he has been unable to do so since he became unemployed. No competent evidence in the record contradicts this statement.

Prior to the commencement of the proceedings in this matter, the father executed a “financial disclosure affidavit” which[*626] indicates that he has no assets of any significance aside from “50 acres of land ½ owner” the value of which is reflected by the mark “?”. Based on this document, a “family court screening bureau” recommended denial of his request for assignment of counsel.

On October 18, 1996, after a hearing at which the father was not represented by counsel, the Hearing Examiner concluded that the father had “not rebutted the presumption of ability to earn”, and found that the violation of the order of support was willful. The Hearing Examiner directed the payment of $9,720 in arrears by November 11, 1996, referred the finding of willful violation to the Family Court Judge for disposition, and recommended 30 days incarceration.

On November 20, 1996, the Family Court initially conducted colloquy with both parties, who appeared pro se. Then, after directing the assignment of counsel to the father in the middle of these proceedings, the court conducted further colloquy with the father’s newly-assigned counsel. At the conclusion of those proceedings, the court sentenced the father to 60 days in jail, subject to the condition that he could purge himself by paying $9,720 in child support arrears. We reverse.

In general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence (see, Argersinger v Hamlin, 407 US 25; Holmes v Holmes, 89 AD2d 921; see also, Family Ct Act § 262 [a] [vi]; Gifford v Gifford, 223 AD2d 669; Matter of Rockland County Dept, of Social Servs. v Champagne, 131 AD2d 488; People ex rel. Lobenthal v Koehler, 129 AD2d 28; Matter of Williams v Williams, 91 AD2d 1044). Here, the court made a finding of indigence at a late stage in the proceedings and only then assigned counsel; this was, in our opinion, inadequate. The hearing before the Hearing Examiner had already concluded, and findings of fact had already been made. The right of counsel implies that the court will give a respondent and his counsel a reasonable opportunity to appear and present evidence and arguments (see, Matter of Lewis v Crosson, 53 AD2d 1029). This rule was not honored here.

We find that it was error to presume, in the absence of any proof, that the appellant’s half-interest in certain real property rendered him able to retain counsel. There is no basis in this record to conclude that this asset is susceptible to immediate disposition, and there is no competent proof in the record establishing the value of this asset. The Hearing Examiner erred to the extent that she relied on this asset in determining[*627] that the father was not eligible for assigned counsel. While the Family Court later implicitly overruled the Hearing Examiner’s determination as to the father’s eligibility for assigned counsel, this did not occur until after the father had already been prejudiced.

We remit the matter to the Family Court for further proceedings at which the father shall have the assistance of counsel. Bracken, J. P., Rosenblatt, Ritter and Luciano, JJ., concur.