confirmation hearing in New York

2019The father appeals from Family Court's order of commitment and its order confirming the willfulness finding. [FN1] As to the finding of willfulness, failure to pay child support as ordered by a court is prima facie evidence of a willful violation ( see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers , 86 NY2d 63, 69 [1995]; Matter of Leder v Leder , 140 AD3d 1228, 1229 [2016]).

1999Notably, respondent offered no proof at the confirmation hearing to rebut petitioner’s evidence that he had willfully violated the consent support order, as it was his burden to do (see, Matter of Powers v Powers, 86 NY2d 63, 69-70 ; Matter of Tarbell v Tarbell, 241 AD2d 702, 703 ; see also, Family Ct Act § 437), and, thus, Family Court’s findings of willfulness and contempt were not erroneous.

2011“A person who faces the possibility of imprisonment stemming from the willful violation of a previous order of the court has the right to the assistance of counsel” (Matter of Scott v Scott, 62 AD3d 714, 715 ; see Family Ct Act § 262 [a] [vi]; Matter of Tanya T.

2011“A person who faces the possibility of imprisonment stemming from the willful violation of a previous order of the court has the right to the assistance of counsel” (Matter of Scott v Scott, 62 AD3d 714, 715 [2009]; see Family Ct Act § 262 [a] [vi]; Matter of Tanya T.

2022Although the father provided medical records substantiating his ailments, we agree with Family Court's determination that those records failed to demonstrate that he was unable to pursue employment in a different field than construction ( see Matter of Sayyeau v Nourse , 165 AD3d 1417 , 1418 [3d Dept 2018]; Matter of Wilson v LaMountain[*2] , 83 AD3d 1154, 1156 [3d Dept 2011]).

2021Matter of State of New York v Kenneth II. , 190 AD3d 33, 48 [2020]; People v Vandegrift , 170 AD3d 1327 , 1329 [2019]; People v Wilson , 164 AD3d 1012 , 1021 [2018]; Matter of Sutton v Mundy , 24 AD3d 1128, 1129 [2005]; Matter of Commissioner of Social Servs. of Rensselaer County [Faresta] v Faresta , 11 AD3d 750, 753 [2004]; People v Edwards , 271 AD2d 812, 812-813 [2000]).

2021An 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 AD3d 1394, 1395 [2012]), although "'this entitlement does not encompass the right to counsel of one's own choosing'" ( Matter of Tarnai v Buchbinder , 132 AD3d 884, 886 [2015], quoting People v Porto , 16 NY3d 93, 99 [2010]).

2021An 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 AD3d 1394, 1395 [2012]), although "'this entitlement does not encompass the right to counsel of one's own choosing'" ( Matter of Tarnai v Buchbinder , 132 AD3d 884, 886 [2015], quoting People v Porto , 16 NY3d 93, 99 [2010]).

2021Matter of State of New York v Kenneth II. , 190 AD3d 33, 48 [2020]; People v Vandegrift , 170 AD3d 1327 , 1329 [2019]; People v Wilson , 164 AD3d 1012 , 1021 [2018]; Matter of Sutton v Mundy , 24 AD3d 1128, 1129 [2005]; Matter of Commissioner of Social Servs. of Rensselaer County [Faresta] v Faresta , 11 AD3d 750, 753 [2004]; People v Edwards , 271 AD2d 812, 812-813 [2000]).

2021Matter of State of New York v Kenneth II. , 190 AD3d 33, 48 [2020]; People v Vandegrift , 170 AD3d 1327 , 1329 [2019]; People v Wilson , 164 AD3d 1012 , 1021 [2018]; Matter of Sutton v Mundy , 24 AD3d 1128, 1129 [2005]; Matter of Commissioner of Social Servs. of Rensselaer County [Faresta] v Faresta , 11 AD3d 750, 753 [2004]; People v Edwards , 271 AD2d 812, 812-813 [2000]).

2021Matter of State of New York v Kenneth II. , 190 AD3d 33, 48 [2020]; People v Vandegrift , 170 AD3d 1327 , 1329 [2019]; People v Wilson , 164 AD3d 1012 , 1021 [2018]; Matter of Sutton v Mundy , 24 AD3d 1128, 1129 [2005]; Matter of Commissioner of Social Servs. of Rensselaer County [Faresta] v Faresta , 11 AD3d 750, 753 [2004]; People v Edwards , 271 AD2d 812, 812-813 [2000]).

2021An 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 AD3d 1394, 1395 [2012]), although "'this entitlement does not encompass the right to counsel of one's own choosing'" ( Matter of Tarnai v Buchbinder , 132 AD3d 884, 886 [2015], quoting People v Porto , 16 NY3d 93, 99 [2010]).

2019ORDERED that the order dated January 8, 2018, is affirmed insofar as reviewed, without costs or disbursements. " The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court'" ( Matter of Leonard v Leonard , 150 AD3d 1242, 1244 , quoting Matter of Lorys v Powell , 116 AD3d 1047, 1048 ; see Branch v Cole-Lacy , 96 AD3d 741 ). " In making such a determination, the court must undertake a balanced consideration of all relevant factors'" ( Matter of Leonard v Leonard , 150 AD3d at 1244 , quoting Matter of Lorys v Powell , 116 AD3d at 1048 ).

2019ORDERED that the order dated January 8, 2018, is affirmed insofar as reviewed, without costs or disbursements. " The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court'" ( Matter of Leonard v Leonard , 150 AD3d 1242, 1244 , quoting Matter of Lorys v Powell , 116 AD3d 1047, 1048 ; see Branch v Cole-Lacy , 96 AD3d 741 ). " In making such a determination, the court must undertake a balanced consideration of all relevant factors'" ( Matter of Leonard v Leonard , 150 AD3d at 1244 , quoting Matter of Lorys v Powell , 116 AD3d at 1048 ).

2019ORDERED that the order dated January 8, 2018, is affirmed insofar as reviewed, without costs or disbursements. " The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court'" ( Matter of Leonard v Leonard , 150 AD3d 1242, 1244 , quoting Matter of Lorys v Powell , 116 AD3d 1047, 1048 ; see Branch v Cole-Lacy , 96 AD3d 741 ). " In making such a determination, the court must undertake a balanced consideration of all relevant factors'" ( Matter of Leonard v Leonard , 150 AD3d at 1244 , quoting Matter of Lorys v Powell , 116 AD3d at 1048 ).

2019The father appeals from Family Court's order of commitment and its order confirming the willfulness finding. [FN1] As to the finding of willfulness, failure to pay child support as ordered by a court is prima facie evidence of a willful violation ( see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers , 86 NY2d 63, 69 [1995]; Matter of Leder v Leder , 140 AD3d 1228, 1229 [2016]).

2019Accordingly, there is no factual basis in the record to support respondent's contention that he was denied meaningful representation ( see generally Matter of Ritter v Moll , 148 AD3d 1427, 1429-1430 [2017]).

2019ORDERED that the order dated January 8, 2018, is affirmed insofar as reviewed, without costs or disbursements. " The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court'" ( Matter of Leonard v Leonard , 150 AD3d 1242, 1244 , quoting Matter of Lorys v Powell , 116 AD3d 1047, 1048 ; see Branch v Cole-Lacy , 96 AD3d 741 ). " In making such a determination, the court must undertake a balanced consideration of all relevant factors'" ( Matter of Leonard v Leonard , 150 AD3d at 1244 , quoting Matter of Lorys v Powell , 116 AD3d at 1048 ).

2019ORDERED that the order dated January 8, 2018, is affirmed insofar as reviewed, without costs or disbursements. " The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court'" ( Matter of Leonard v Leonard , 150 AD3d 1242, 1244 , quoting Matter of Lorys v Powell , 116 AD3d 1047, 1048 ; see Branch v Cole-Lacy , 96 AD3d 741 ). " In making such a determination, the court must undertake a balanced consideration of all relevant factors'" ( Matter of Leonard v Leonard , 150 AD3d at 1244 , quoting Matter of Lorys v Powell , 116 AD3d at 1048 ).

2017Assets acquired after a Chapter 13 plan is confirmed by the court are not included as property of the estate, unless they are necessary to maintain the plan (see 11 USC §§ 1306 [a]; 1326), or the trustee seeks a modification of the plan to remedy a substantial change in the debtor’s income or expenses that was not anticipated at the time of the confirmation hearing (see 11 USC § 1329 [a]; In re Solis, 172 BR 530, 532 [Bankr SD NY 1994]).

2017Assets acquired after a Chapter 13 plan is confirmed by the court are not included as property of the estate, unless they are necessary to maintain the plan ( see 11 USC §§ 1306 [a]; 1326), or the trustee seeks a modification of the plan to remedy a substantial change in the debtor's income or expenses that was not anticipated at the time of the confirmation hearing ( see 11 USC § 1329 [a]; In re Solis, 172 BR 530, 532 [Bankr SD NY]).

2010Initially, we note that the father was afforded the required hearing prior to Family Court’s finding of a willful violation (see Matter of Columbia County Support Collection Unit v Interdonato, 51 AD3d 1167, 1168 [2008]), as well as a confirmation hearing (see Family Ct Act §§ 439, 454).

2010Res judicata does not bar a claim to recover damages for legal malpractice relating to transactions which occurred after the fee awards on those cases, since claims relating to transactions cannot be resolved before the transactions occur (see O’Brien v City of Syracuse, 54 NY2d 353, 358 [1981]).

2007Under the circumstances of this case, it cannot be said that Family Court erred in not issuing a suspended commitment order (cf. Matter of Heyn v Burr, 19 AD3d 896, 898 [2005]).

2006Thus, in addition to failing to assure that petitioner had been properly advised of her right to assigned counsel, Family Court denied her that right when she attempted to exercise it at the confirmation hearing (see Matter of Brunette v Bibeau, supra at 929).

2006Despite its obligation to address the issue of representation and rectify any deficiencies (see Matter of Wilder v Bufe, 25 AD3d 827, 828 [2006]), Family Court merely told petitioner that her request was “too late” and ordered her incarcerated unless she paid the full child support arrears of $4,488.

2006Moreover, nothing in the record before us can be read to constitute a knowing and intelligent waiver of petitioner’s rights at either her first appearance or the confirmation hearing (see Matter of Wilder v Bufe, supra at 828-829).

2005Affording deference to this credibility assessment (see Matter of Holscher v Holscher, 4 AD3d 629, 630 [2004], lv denied 3 NY3d 606 [2004]; Matter of Reed v Reed, 240 AD2d 951, 952 [1997]), we find no reason to disturb the court’s determination (see Matter of Sapp v Taylor, 298 AD2d 590, 592 [2002]).

2005Affording deference to this credibility assessment (see Matter of Holscher v Holscher, 4 AD3d 629, 630 [2004], lv denied 3 NY3d 606 [2004]; Matter of Reed v Reed, 240 AD2d 951, 952 [1997]), we find no reason to disturb the court’s determination (see Matter of Sapp v Taylor, 298 AD2d 590, 592 [2002]).