Carney v Carney
Annotate this CaseDecided on May 19, 2017
Supreme Court, Monroe County
Jun Carney, Plaintiff,
against
Patrick Carney, Defendant.
11/482
Kristina Karle, Esq.
Attorney for Plaintiff
Rochester, New York
Jill L. Paperno, Esq.
First Assistant Public Defender
Special Appointed Counsel for Defendant
Rochester, New York
Paul Meyer, Esq.
Special Appointed Counsel
Rochester, New York
Richard A. Dollinger, J.
INTRODUCTION
Imputing income to a litigant in a matrimonial matter — attributing unrealized income to unrealized but attainable economic potential — is a tricky business for a trial judge. When the imputed income question arises as a precondition to assignment of a lawyer for a child custody matter, with a contempt finding as a possibility, the rules on imputation demand an even-more-exacting analysis. The collision of constitutional rights with the limitations on eligibility for free legal services, while considering a public policy to preserve scarce public resources for only those "unable to retain counsel," transforms the question from a pedagogical exercise, into a ripe dispute. In another context, can a highly-educated and highly-skilled litigant, who has failed to seriously pursue full-time employment commensurate with his advance skills for more than 20 years, qualify for publicly-funded legal assistance, while his wife, who advocates for her [*2]children, and seeks to hold her husband accountable for alleged violations of court orders, finances her legal representation with her own funds at substantial expense?
In this matter, a litigant seeks appointment of counsel, at the public's expense, to represent him in a child custody matter. His ex-wife, the primary custodial parent of the couple's two children, seeks to hold him in contempt for violations of court orders that restrict his access to his children. This court, in two prior opinions, set forth the long history of this mater and detailed prior court holdings and determinations.[FN1] The sum of this controversy is that the mother, employed as an executive at a large corporation, has had primary residence and custody of the two children, who are excellent students in high school. The father has long challenged the mother's custodial rights. The attorney for the children has consistently expressed that the children want to see and spend time with their father. However, the father has repeatedly failed to comply with court orders, and that failure has led to a parade of restrictions on his visitation, and eventually to his incarceration. Further alleged violations of court orders and rulings has prompted the current contempt proceeding. Throughout the entire history of these proceedings, the father has never paid child support. There is no evidence that he has ever paid for any the child-related costs for these children.[FN2] In the face of the latest proceeding, the father asks this court to appoint him a public defender to represent him.[FN3] In the two prior opinions, this court has held that it has the discretion to impute income to the father before determining his eligibility for appointment of the Monroe County Public Defender to represent him, that the father had the burden of proof to demonstrate his entitlement to appointed counsel, and that it would not recuse itself from presiding over the hearing to determine what, if any, amount should be imputed to the [*3]father.
The mother of the children declined to participate in the hearing (citing the cost of participation). The absence of the mother's counsel to cross-examine the respondent created a dilemma for the court. There was no advocate present to either cross-examine the respondent on the veracity of his claims or to present evidence of available employment. In most instances where imputation of income arises during a matrimonial matter, the adversary - usually, the party seeking increased support - presses the payor spouse on the existence of employment opportunities and the payor's qualifications for those jobs. The adversary's strategy is to prove that a payor is not working to the fullest extent of their capabilities, so as not to pay increased financial support to their client. Without the mother's counsel to press these questions, without an adversary with an incentive to probe the respondent's answers and veracity, the court faced the prospect of confronting the respondent and asking probing questions regarding his qualifications and job experience. This court was sensitive to any apprehension that it would lose its impartiality as the trier of fact, but was also cognizant of its obligations under pertinent statutes to conduct an inquiry into whether the respondent was financially "unable to retain counsel." Under these circumstances, the court appointed an attorney to represent the public interest, and that attorney cross-examined the respondent at the hearing.
The hearing consumed parts of two days. The applicant father was the sole witness. This court appointed the Public Defender to represent the father on a provisional basis. The father's burden of proof was to show that he met the income qualifications for the public defender's services under the various New York statutes and rules governing the appointment of counsel at public expense. Initially, this court notes that in a prior opinion, the court addressed its concerns over the father's veracity. Those concerns were allayed during the hearing. This court accepts his straight-forward testimony and credits it for the purposes of this proceeding. The respondent is 47-years-old, resides with his parents and has done so, apparently, for several years. There is no evidence that he pays any rent or has any other costs associated with living with his parents. He testified that he had about $7,000 in his bank accounts at the time of the hearing. He further testified that most of those funds were derived from student loans. He testified without challenge that the funds in his bank accounts were restricted and said that he could not use these funds for legal expenses. However, he provided no documentation, loan documents, government regulations or the like that would restrict the use of these funds. He provided no documents indicating withdrawals or transfers from the account. He provided no evidence of the cost in tuition of his current education to obtain a doctoral degree in mathematics. He provided no testimony or other evidence of any short-term debt or credit card balances that would indicate an inability to meet his current expenses with his current income.
The father testified that he holds an undergraduate degree in engineering and that he worked as an intern in engineering for about a year after his graduation in 1994.[FN4] He then attained a masters degree in mathematics from the University of Buffalo in 1996. Under cross-examination, he acknowledged that he "presently" had the skills of a trained mathematician who could, "apply mathematical theories and techniques to solve practical problems in business, engineering, the sciences and other fields" and "develop mathematical or statistical models to [*4]analyze data." After achieving his masters degree, the respondent begin to work on a doctorate in mathematics at the University of Rochester. He pursued that degree for two years and worked as a teaching assistant. He lost his teaching assistant position at the University of Rochester in 1998 because of what he admitted was "poor teaching." The applicant then took a seven-year sabbatical from his education. In that seven-year period of time, between 1998 when he left the University of Rochester until 2005 when he attended Syracuse University, the respondent never held a full-time job; for that matter, there is no evidence that he even attempted to seek any full-time or part-time employment. He testified that he did some adjunct teaching for one quarter at Rochester Institute of Technology.[FN5] He also held an adjunct position at Genesee Community College for one semester and a similar position at Monroe Community College. Other than that, there is no evidence that he worked in the period from 1998 to 2005.Under cross-examination the respondent admitted that from 1998 to 2005 he had not applied for any other employment (other than the adjunct teaching positions) and simply studied on his own, even though he was not pursuing a degree. There is no evidence of any income tax returns filed on his behalf to verify the amount of income that he obtained during that time. In 2005, he enrolled in the mathematics doctoral program at Syracuse University. Despite five years there, the respondent failed to obtain an advanced degree and he lost his teaching assistant position because, as he admitted, "they would say poor teaching." There is no evidence that he sought full-time employment at any time during his tenure at Syracuse, and no evidence of any income he earned during that time. He left Syracuse without the degree completed.
The respondent is currently seeking a doctoral degree at the State University of New York at Binghamton. He has been pursuing that degree for five years. He was assigned a teaching assistant position there, but it was discontinued because, as he described it, "of a personal conflict." In response to further questioning, the respondent testified that he met with his advisor once or twice a week during the school year, a factor which would, he inferred, impact his ability to perform full-time work. However, he admitted during the January hearing, that he had only traveled to Binghamton once in the prior three months, and further, he failed to provide any evidence of the costs or consequences of these travels to Binghamton. The respondent failed to provide any evidence of his current studies at Binghamton: there were no transcripts, no confirmation of the status of his degree, or any other documentary evidence of his time commitments in the doctoral program at Binghamton. He admitted further that his doctoral thesis was only a quarter done, even though he had been pursuing it, on and off, for more than 19 years. In short, the respondent admitted that other than part-time teaching positions that accompanied his pursuit of an advanced degree, he had never held any full-time or part-time employment (other than his occasional, recently-pursued, tutoring of pre-college students) in his entire adult life.
During cross-examination, the respondent was asked about the possible use of his master's degree in mathematics as a tool to obtain employment. He admitted that his master's degree would qualify him as a public school teacher, but claimed that he lacked certification to teach in New York. There is no evidence that he ever applied or sought a position as a public [*5]school teacher. He never sought the certification to be eligible as a public school teacher even though he acknowledged his masters degree would qualify him for such certification.He also testified that he did not need New York State certification to teach in a private school. During further cross-examination, the respondent stated that he had recently contacted approximately a dozen school districts to determine whether they had any openings for which he was qualified. He testified that he had just recently received a call back from one of the private schools, but he needed to refresh his recollection as to which school that had contacted him. He did not testify as to any of the discussions with that school or offer any opinion of whether he thought they would hire him. When asked whether he knew whether he was being seriously considered as a candidate for this position he demurred, saying, "we have missed each other."
When asked whether he had contacted any colleges in an attempt to gain appointment, he admitted that he had contacted Binghamton, but he was told that he was not able to secure any employment there at that time. It was unclear, based on his testimony, exactly when he had initiated these contacts. He admitted that he had not contacted any other post-secondary schools. He later testified that he had contacted Empire State College and sought a position. He testified that he had contacted Monroe Community College recently, but there was no evidence he ever applied for any specific position and he admitted that he's been unable to obtain employment there. Despite the dearth of employment searches, the respondent presented as a confident mathematician and he acknowledged that he is "a highly intelligent individual." He admitted that because of his mathematical background, he could perform financial math, or if he chose, he could work as an actuary, but he added, he would take such a job "only if I was desperate." When asked to clarify what his use of the term "desperate" meant, the respondent testified that an "actuary" was a "lower level position," but added "there's also accounting and managerial positions that are available . . . that a math degree lends itself to."
In response to questioning, the respondent admitted that he had never applied for jobs in either the accounting or actuary fields. In response to cross examination, the respondent admitted that he had substantial skills, including the skills to apply mathematical formulas and models to prove or disapprove theories, apply those theories to solve practical problems in the business, engineering and science fields, and he acknowledged that he could develop statistical models to analyze data to improve business decisions. When asked whether he ever applied for jobs using his skills as a mathematician or an electrical engineer, the respondent said no. When pressed on whether he could be an actuary, the respondent testified he would have to go back and take certain courses to become an actuary, but he admitted that he knew he could do the types of calculations done by actuaries — "I do know I could do it" — and further admitted that was typically what students in math did when they finish their degrees. He also admitted that he could do the job of a data analyst.
Despite his credentials and his confidence that he could perform these jobs, there was no evidence that the respondent had ever sought these positions. The respondent testified that he had searched job websites, but when asked which specific sites he had reviewed, he could not relate any. When pressed on cross-examination, the respondent acknowledged that he had reviewed jobs posted on Monster.com, but admitted that he had not reviewed that site until just recently and further admitted that he had never posted his resume on that job site or any other. The respondent also testified that he had established an account on LinkedIn in order to obtain [*6]employment. He admitted that he had undertaken that step several years ago, but that he had not updated it since he first established it. He admitted that he had not been on the website for the local community college in more than nine years. He testified that he had never attempted to be listed in an employment agency and admitted under cross-examination that he had not attended a job fair seeking employment for almost 20 years.
Finally, under questioning from the court, the respondent was asked whether he had ever applied for a job at Starbucks or Walmart or Wegmans, or any other type of employment, even at wages that were likely less than what he hoped to achieve based on his education. The respondent testified that he had not and admitted that he had never applied for a full-time employment outside the field of teaching mathematics. He admitted he had not applied for part-time employment, in any field, in more than six years. When asked under cross-examination whether he was actively seeking employment at the time of the hearing, the respondent said he was not seeking employment at all.
The respondent does have some income. He testified that he had a sole proprietary business tutoring students. He admitted that currently he has two students in his tutoring program and that he charges about $25 an hour for his services He failed to provide the course of study for the students, any billings for the students, or evidence of any payments by the students. He testified that he spent approximately one to two hours a week with each student, but 25 to 35 hours a week preparing student lessons. The respondent never identified why it took so much time to prepare the lessons in contrast to the time spent with the students. He further stated that he had started the tutoring program a year and a half ago. In this record, there is simply no evidence that the respondent had seriously sought to make his tutorial business work to generate income. The respondent failed to provide any evidence that would suggest this business enterprise is anything more than an occasional hobby.
There is no evidence that the respondent has ever applied for public assistance or is in any danger of becoming a public charge. There is no evidence that he ever applied for unemployment insurance. There is no evidence, despite his meager income, that he cannot pay his bills (or any evidence of his current bills or costs of living).
In addition to the plethora of evidence demonstrating the respondent's lack of employment, he was also questioned, and cross-examined, regarding his search for attorneys to represent him in the current matter. He testified that he had contacted about a dozen law firms to represent him, that they had quoted him prices and required that he pay a retainer, and that he had been "unable to retain counsel" because he did not have the retainer fee. The respondent was not asked to identify any specific law firm or attorneys that he had contacted, nor did he testify to any rates charged by the firms he contacted, or the retainer fees. There was no evidence as to whether he contacted any other legal services providers such as the Legal Aid Society of Rochester or the Volunteer Legal Services Project in Rochester.[FN6] He never provided any statements about whether his parents or any other party would have assisted him in paying the retainer fee or whether he ever attempted to borrow money — even through credit cards — to pay for his attorney fees. [*7]There was no evidence presented by the respondent or his counsel of the "going rate" - or any rates, for that matter - for attorneys in contested matrimonial actions or contempt proceedings in the Rochester area.[FN7] Simply put, if there is no competent evidence of what legal services cost or how extensive those services will be in this case, how can this court determine - as it must under the statute - that this respondent cannot "obtain" those services at private pay rates?
Before commenting on the totality of the facts produced in this case, several historical facts, adduced during the long course of this matter before this court, deserve attention. First, the mother has privately financed all the litigation over the father's compliance with prior court orders. She has spent substantial private funds defending her rights under the prior court orders.[FN8] In short, the mother is paying substantial sums of family-based resources to protect her interests and those of her children. This court has, on several occasions, confirmed the mother's actions as in the best interests of the children.
Second, this court, having eight years experience in matrimonial matters, was keenly cognizant throughout the hearing that mental health complications can cause anyone to be adverse to employment in certain settings. See e..g., Greene v. Holmes, 31 AD3d 760 (2nd Dept.. 2006) (complete medical evidence of bipolar disorder as basis for modification of support reviewed); Matter of Sutton-Murley v. O'Connor, 61 AD3d 1054 (3rd Dept.. 2009) (competent medical proof that his mental condition prevented him from maintaining employment needed to justify modification of support and evidence of depression and mood disorder do not suggest [*8]applicant could not, or should not, work). This court understands that a wide range of mental health difficulties can affect an individual's ability to work. In this case, the father admits that he has encountered difficulties in his adjunct teaching assignments, acknowledging at one point, that a "personality conflict" had cost him an adjunct teaching position. If there were any proof that this respondent exhibited mental health difficulties this court would not hesitate to abandon any suggestion of imputed income, and immediately assign him counsel. But, no evidence was produced that would justify a conclusion that the respondent has any psychological aversion to employment or any disability that would impair or prevent employment. Based on its experience in matrimonial matters, this court acknowledges that stress or anxiety, even if not rising to the level of psychosis, can produce behaviors that preclude employment. See e.g., Matter of Devito v Chaffetz, 52 Misc 3d 1206 (A) (Sup. Ct. New York Cty. 2016). In this case, there is no evidence of any mental health deficits that would preclude the respondent's employment. There is no evidence of any physical disabilities or other traits that would impair his ability to be employed. In the absence of such evidence, this court can only conclude that the respondent's refusal to seek full-time employment of any kind is purely volitional.
Third, the Public Defender noted that this court had previously appointed a public defender to represent the respondent in an earlier phase of this matter and, in a Family Court proceeding (that was eventually transferred to this court), the respondent had again been appointed counsel. The Public Defender suggests that these prior appointments foreclose the court from the current inquiry. This court rejects that bootstrap argument. There has previously never been an inquiry into the respondent's eligibility either by this court or Family Court. And the fact that this court did not perform an inquiry earlier does not preclude its performance of the statutorily required inquest now.
Finally, under redirect examination, the Public Defender confirmed that the respondent had been appointed counsel for an appeal before the Appellate Division Fourth Department. There was an extensive discussion about the relevance of such an inquiry, and the court noted that it was not familiar with the criteria used by the Appellate Division in determining an application for indigent status and representation on appeal. The Public Defender argued that the procedure and approval of the Appellate Division Fourth Department regarding the respondent's poor person status should be an important factor for the court to consider. However, despite ample opportunity to do so, the respondent did not introduce any evidence of his application to the Appellate Division Fourth Department. There is no suggestion that any of the representations made by this respondent to the Appellate Division were checked or approved for accuracy or their truthfulness. The respondent testified that he had gone to the Appellate Division Law Library and obtained an application. He testified that he had provided information on current bank accounts, current employment, and a list of possessions as part of his application. The respondent's application was never offered for admission (respondent's counsel stated that "we don't have a copy of that"). The respondent never offered the order of the Appellate Division approving his application. The respondent's counsel seems to infer that the mere statement - "the Appellate Division has granted his application" - somehow meets the applicant's burden of proof before this court. This in-court unsworn statement made by the Public Defender about a fact relating to the respondent's application before another court, while entitled to a certain collegial respect, hardly meets the respondent's burden of proof.
In the absence of any evidence of the Appellate Division's approval process, this court went to the Appellate Division website - publicly available - and downloaded the application for appointment of counsel. The application requires a sworn statement of the applicant's financial status. The application demands reporting of an applicant's "GROSS monthly income" and a list of assets. Importantly, there is no requirement for documentation of income or assets - the applicant's statement alone is sufficient. It appears that there is no review of the applicant's statement and, based on the document, no indication that anyone at the Appellate Division inquires about the accuracy of the applicant's disclosures.[FN9] In short, there is no evidence that the Appellate Division has conducted the type of inquiry that this court, in fulfilling its obligations under the pertinent authorization statutes, is now conducting. There is no documentary evidence that the Appellate Division approval - if it exists - pre-empts this court's searching — and mandated — inquiry into the applicant's qualification. Because this court does not have access to the respondent's application to the Appellate Division, this court cannot draw any conclusions regarding whether the Appellate Division made any determination of whether the respondent met his burden of proof as required by the statutes. For these reasons, this court declines to hold that the fact that the Appellate Division, through some administrative process, may have declared that the respondent qualified for appointed counsel, and that determination bars this court from applying the statutory and regulatory requirements to evaluate his eligibility for appointment of counsel in this court.
THE STATUS OF APPOINTED COUNSEL IN NEW YORK - THE INTERACTION BETWEEN THE ENABLING STATUTES AND THE ANALYSIS OF INDIGENT LEGAL SERVICES
In its prior opinions, this court held that an integral component of the right to counsel is the availability of court-appointed counsel for those financially unable to retain an attorney. Scott v Illinois, 440 US 367 (1979). The New York State Constitution contains the same premise. NY Constitution, Art I, § 6.[FN10] A person who faces the possibility of imprisonment stemming from the willful violation of a previous order of the court — as this respondent does — has the right to the assistance of counsel. Lundgren v Lundgren, 127 AD3d 938 (2nd Dept. 2015); [*9]Matter of Bader v Hazzis, 77 AD3d 742, 744 (2nd Dept. 2010). This important right is not universal or automatic. Every statute in New York that provides for such an appointment conditions the appointment on the same standard: the litigant must be "financially unable to obtain the same." New York Family Court Act § 262 (a). CPL § 180.10 (3) (c); New York Judiciary Law § 35; New York County Law § 722-a; see Carney v. Carney, supra at 417.[FN11] Under this consistent standard, New York courts have declined to appoint counsel when the applicant fails to meet that standard. Moiseeva v. Sichkin, 129 AD3d 974 (2nd Dept. 2015); Matter of Perez v Richmond, 104 AD3d 692 (2nd Dept. 2013); Anderson v. Harris, 73 AD3d 456 (1st Dept. 2010) (assigned counsel denied based on unsigned and undated financial affidavit and having previously retained private counsel caused court to have "reason to doubt his claim of indigence"). In a prior opinion, this court analyzed the standards for appointment of indigent counsel under New York law. Carney v Carney, 54 Misc 3d 947 (Sup. Ct. Monroe Cty. 2016).
In 2010, the Legislature, reflecting a sensitivity to the complexity of factors involved in determining indigent representation, delegated certain aspects involving the interpretation of these clauses to the Indigent Legal Services Department (ILS), requiring it to establish "criteria and procedures to guide courts in determining whether a person is eligible for such representation." NY Executive Law § 832 (3) (c). While the Executive Law delegates certain authority to the ILS Department - and the ILS Board established by Section 833 of the same statute - the 2010 statute recognized two important principles. First, the new law did not change the statutory threshold for determining edibility. The test - "financially unable to retain counsel" - remains encased in all of the pertinent statutes. Second, this portion of the Executive Law re-enforces an earlier conclusion of this court: it is the court that determines eligibility, and the "criteria and procedures" advanced by ILS are simply a "guide" for the court in determining eligibility. NY Executive Law § 832 (3) (c). In short, the Legislature did not give ILS - or any other entity - the authority to decide who is eligible: the decision rests with the court.[FN12]
In 2016, ILS released its Final Report ("the Guidelines"), which reviewed New York's long history of publicly funding indigent legal services. On September 20, 2016, the Counsel to the chief administrative judge issued a memorandum, covering the ILS Guidelines and advising that they "were to be applicable" in Monroe County on April 1, 2017. Memorandum, John W. McConnell & Paul McDonnell to Hon. Michael V. Coccoma, Determining Financial Eligibility for Assigned Counsel, Sept. 20, 2016. In the accompanying comments, counsel to the administrative judge acknowledged "we believe that the Guidelines are not binding on the courts" and added "judges retain the power to act in a manner contrary to the ILS standards and procedures when they deem it appropriate." Id. While not dispositive, the ILS Guidelines are still instructive.[FN13] The ILS proposal suggests a series of presumptive criteria for eligibility including any applicant with an income within 250 percent of the federal poverty guidelines, or an applicant receiving any form of public assistance, under both scenarios the applicant would be presumptively eligible for appointment of counsel.[FN14] The Guidelines also indicate that [*10]resources from a third party cannot be considered as "available to the applicant." The Guidelines add that eligibility determinations shall take into account the actual cost of retaining a private attorney in the relevant jurisdiction. The Guidelines do not overturn the governing legal principle: courts have the ultimate authority to determine eligibility. ILS Guidelines, p. 14. The Guidelines further emphasize the obligations of the court regarding applicants:
ILS promulgates these criteria and procedures with the understanding that, while courts have the ultimate authority to determine if applicants are entitled to assigned counsel, courts need not be responsible for gathering information and screening applicants for eligibility. Other entities can be involved in gathering the required information from applicants, assessing this information, and then making a recommendation to the court as to applicants' eligibility for assigned counsel.ILS Guidelines, p. 17.
The Guidelines also contain valuable criteria for evaluating the financial status of an applicant, commenting that:
Nor should applicants have to choose between retaining private counsel and providing basic life necessities for themselves and their dependents. Applicants should not have to risk having their lives de-stabilized (i.e., losing a home, a car needed for employment, and the ability to pay for food, clothing and utilities) to pay the costs of a defense.ILS Guidelines, p. 19. In addition, the ILS Guidelines extend the eligibility even further, commenting: To fully honor an applicant's right to assignment of counsel, counsel should be assigned unless the applicant is conclusively ineligible for assignment of counsel. This rule is consistent with the rules and procedures in other jurisdictions, including the federal government.
Id.
While this court does not consider the ILS Guidelines as binding on this court's determination, does stop to review the impact of these criteria on the applicant before the court. The first criteria relates to the Federal Poverty Guidelines (FPG) and sets a standard that anyone whose income is within 250 percent of the FPG would be presumptively eligible for appointment of counsel. In Rochester, New York, the FPG is approximately $12,060 for a single individual. http://familiesusa.org/product/federal-poverty-guidelines. Under this standard, an applicant would be presumptively eligible if they earned less than $30,015 annually. However, this presumption, if applied, would drastically change New York law. First, the presumption changes the burden of proof: the applicant no longer has to demonstrate an inability to retain counsel. The applicant with less than $31,000 in income would virtually automatically qualify, regardless of other criteria, including other valuable assets, significant available family support, substantial and valuable work place skills or support from a significant other. Second, the use of a presumptive eligibility test moves the determination away from the court's searching case-by-case inquiry.. The use of an arbitrary index is not authorized by statute, bends the burden of proof, and removes the court from its obligation to justly determine eligibility - using a wide range of available and pertinent economic factors - for this significant public benefit. For those reasons, the court declines to be bound by this "presumptive" percentage of the FPG on income as dictating eligibility, but instead, will use it as a guideline for its determination.
The second criteria relates to public assistance. There is no evidence in this record that the respondent, despite not working full-time for almost 20 years, has ever received any public benefits and hence, this criteria does not apply. There is no evidence that paying for private counsel would "destabilize" the life of this applicant.[FN15] Third, there is nothing in the Guidelines that bars a court from imputing income to an applicant - the notion is never mentioned. The Guidelines do suggest that third-party income should not be attributed to an applicant, but nowhere do the Guidelines suggest that in calculating resources available to an applicant, the court should ignore the third-party's gifts or provision of life necessities, such as the free room and board that this applicant receives from his parents. Fourth, there is no evidence in this record that the financial consequence of retaining counsel would impact the respondent's lifestyle. There is no evidence that he would be deprived of necessities, lose his homes or lose the ability to pay for food, clothing, or utilities.
Fifth, the Guidelines properly direct that any court should take the "actual cost of retaining a private attorney" into account in reaching an eligibility determination. In this hearing, there was never any evidence introduced regarding the average hourly rate of retained counsel. There was no evidence of "the going rate" for counsel in contested custody or contempt matters. The applicant's comment that he approached several law firms - he could not remember the names - is unpersuasive and discounted for his lack of recollection and detail (he never testified about any amount he would have to pay for retained legal services). The applicant's counsel never asked this court to take judicial notice of any prevailing rates among retained counsel in this jurisdiction and this court declines to do it sua sponte. The applicant has the burden of proof to demonstrate that prevailing rate fees were beyond his reach - he failed to do so.
Finally, while the Guidelines may have the best of intentions regarding their conclusion that counsel should be provided unless the applicant is conclusively ineligible for assignment, this notion has no foundation in New York's assignment of counsel statutes. The statutes which provide assignment of counsel place the burden of proof on the applicant to demonstrate that they are "unable to retain counsel." The ILS Guideline formulation - without legal foundation - changes the burden of proof to require the government, or some other entity, to prove that the applicant is ineligible. While this flipping of the burden of proof may be "consistent with the rules and procedures in other jurisdictions," - as a footnote in the Guidelines suggest - it is not the rule in New York. Nothing in the Executive Law gives ILS, through its Guidelines, the authority to change the burden of proof required by the enabling statutes for persons applying for a publicly-financed attorney in the circumstances present here. Because the ILS Guideline's proposed change in the burden of proof undercuts New York law, this court declines to follow it.
IMPUTATION OF INCOME TO THIS RESPONDENT
This court proceeds to the issue at hand: did the respondent meet his burden of proof to establish that he was and is "unable to retain counsel?" In reaching this allocation of the burden of proof, this court repeats its earlier determination that the use of the term "unable" was evidence that the Legislature directed that:
The decision to appoint counsel in this case rests on the use of the word "able," the [*11]adjective chosen by the Legislature in all of the statutes involving the appointment of counsel. If an individual is "unable" (translate that word as "incapable") of paying counsel, then he should be extended that important protection, as the New York statutes command. But, if he is "able" (translate that word as "capable") then he should be required to finance his counsel by himself, without government assistance.Carney v. Carney, 54 Misc 3d 411, 414 (Sup.Ct. Monroe Cty 2016). This court held that the respondent bears the burden of proof to establish those facts by the preponderance of the evidence. The court alone decides whether that burden has been met and, any prior administrative determinations, while entitled to some weight, are not dispositive. Finally, this court further held: In addition, it would seem that no conclusion regarding an inability to retain counsel could be drawn without evidence of cost and availability of "retaining counsel." In short, the determination, by Legislative command, is not what an individual is doing now, but what he is capable of doing now. This legislative direction that suggests a court must consider employment potential - the current capability to earn sums that exceed poverty limits - before assigning counsel.
Id at 417-18. The only question remaining before the court is how much income to impute. The court need only review well-established law in matrimonial matters to reach its conclusion. The Domestic Relations Law allows it. DRL § 240 [1-b] [b] [5] [iv]; DiFiore v DiFiore, 87 AD3d 971 (2nd Dept. 2011); A.B. v D.B., 54 Misc 3d 1204 (A) (Sup. Ct. Queens Cty. 2016) (DRL § 240 [1-b] [b] [5] [iv] grants the court discretion to impute or attribute income from other resources if there is insufficient evidence to determine income). Courts are afforded considerable discretion in imputing income in family law circumstances. Morille-Hinds, 87 AD3d 526, 528 (2nd Dept. 2011). When determining a parent's child support obligation, "[a] court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings" Matter of Abruzzo v Jackson, 137 AD3d 1017 (2nd Dept. 2016); Matter of Rohme v Burns, 92 AD3d 946, 947 (2nd Dept. 2012). The court may take into account what the parent is "capable of earning by honest efforts, given his [or her] education and opportunities and base the party's obligation upon his or her "actual earning capacity." Matter of Solis v Marmolejos, 50 AD3d 691, 692 (2nd Dept. 2008). The courts routinely evaluate a parent's "capability" to earn income "by honest efforts, given his [or her] education and opportunities." Matter of Genender v. Genender, 51 AD3d 669 (2nd Dept. 2008). Income is imputed if a parent fails to seek employment that is commensurate with his or her education, skills or experience. Matter of D'Andrea v Prevost, 128 AD3d 1166 (3rd Dept. 2015); Matter of Curley v Klausen, 110 AD3d 1156, 1159 (3rd Dept. 2013). In comparable circumstances, other New York courts have imputed income unless a party can demonstrate diligent efforts to seek employment commensurate with his or her qualifications. J.S. v. J.S., 19 Misc 3d 634 (Sup. Ct. Nassau Cty. 2008). In addition, imputation of income is not dependent on an applicant's immediate income: the court can consider "demonstrated future potential earnings." Gao v. Ming Fan, 2017 NY App. Div. LEXIS 1782 (2nd Dept. 2017). The court may also consider imputing income to an individual when he fails to make any attempt to find a higher-paying job. Branche v. Holloway, 124 AD3d 553 (1st Dept. 2015) (income imputed based on court determination that payor failed "to demonstrate any genuine attempt to obtain [*12]employment"); Bibicoff v. Orfanakis, 48 AD3d 860 (2nd Dept. 2008) (spouse had failed to look for a higher paying job for three years).
In decisions paralleling this matter, the courts have also considered an applicant's possession of an advanced degree as a factor in imputing income. Arthur v. Arthur, 2017 NY App. Div. LEXIS 1584 (3rd Dept. 2017) (master's degree in finance as a factor in imputing income). Similarly, when a spouse, who worked only part-time, acknowledged she had a bachelor's degree in accounting and could work full-time, the court imputed full-time wages to her. Curley v. Klausen, 110 AD3d 1156 (3rd Dept. 2013). See also Decker v. Decker, 2017 NY App. Div. LEXIS 1579 (3rd Dept. 2017) (possession of a master's degree in engineering as a factor in imputation of income);[FN16] Susan M. v. Louis N., 206 AD2d 612 (3rd Dept. 1994) (party's possession of a superior educational background as a factor in imputing income that was eight times greater than the party's taxable income); D.L.M. v. H.S.L., 881 NYS2d 362 (Fam. Ct. Onondaga Cty. 2009) (bachelor of science in degree as a factor in imputing income) The courts have considered full-time employment as a factor in imputing income even if the party is only employed part-time. Pfister v. Pfister, 146 AD3d 1135 (3rd Dept. 2017).
IMPUTED INCOME BASED ON PARENTAL GIFTS AND SUPPORT
The undisputed evidence establishes that the respondent has no housing or shelter costs - he lives with his parents. He offered no proof of any contribution to his parent's overhead or any contribution to meals, utilities, or other costs. Under New York law, a court, considering imputation of income, can take into account contributions to lifestyle expenses from family members. DRL § 240 (Imputation of income for money, goods, or services provided by relatives and friends). Cooper v. Cooper, 52 AD3d 429, 430 (1st Dept. 2008) (the Special Referee properly imputed income to party because there was evidence that plaintiff received assistance from his affluent father); Matter of Todd R.W. v. Gail A.W., 38 AD3d 1181, 1182, 833 NYS2d 335 (4th Dept. 2007) (the Support Magistrate properly imputed income to petitioner where his parents provided him with substantial gifts); Ambrose v. Felice, 45 AD3d 581, 583, 845 NYS2d 411 (2nd Dept. 2007) (the Family Court's failure to impute income to mother where she testified that her father covered significant expenses was an improvident exercise of discretion). In addition, one court, considering a request for appointment of counsel, specifically evaluated his realized earning capacity, his stated living expenses, and the purported support he receives from family and friends as factors in determining whether he could pay private counsel. Cohen v Cohen, 33 Misc 3d 448, 453 (Sup. Ct. Nassau Cty 2011).
In this instance, there was no evidence presented of the value of respondent's "in-kind" contributions of room and board from his parents, but this court can take judicial notice of available data on market rates for housing in the Rochester area. The Department of Numbers, a website that surveys rents in the Rochester New York residential area concludes that the median gross rent in this region is $833 per month or approximately $10,000 annually. http://www.Dept.ofnumbers.com/rent/new-york/rochester/. This imputed value of housing alone would, when combined with his income of approximately $11,000 (as reflected in his 2015 [*13]income tax return),[FN17] permit the conclusion that his total available income in 2015 was approximately $21,000 (a figure that does not include meals). There is no evidence before this court that the respondent buys his own meals and, because he lives at home, this court can easily conclude that he eats there, frequently, as well. If this court allocated only $15 per day for meals and other necessities of daily life that allocation would add $5,475 in additional in-kind contributions from his family annually to his income. If this figure is added to his tax return income and the income attributable to his parent's in-kind contribution of free housing, his imputed income rises to the level of approximately $26,000.
This figure is an important ingredient in this court's calculation. The sum does not include any imputed income from higher compensated employment for which the respondent may be qualified. Importantly, even at this amount - which assumes that he does not work full-time on any endeavor and merely continues his tutoring efforts, is only slightly less than 250 percent of the FPG for the Rochester area. The FPG is $12,060 annually and 250 percent of that amount equals $30,015. The respondent's approximately $26,000 in actual and imputed income, created by imputing the support from his parents and adding it to his taxable income in 2015, is more than 200 percent over the FPG. Even without considering any prospect for higher compensated employment, this respondent has net available resources which are between 200 and 250 percent of the FPG for this region.[FN18]
IMPUTATION BASED ON EMPLOYMENT OPPORTUNITIES
The equation tilts more dramatically against eligibility when any form of reasonable hourly-based employment is considered. In New York, the minium wage is $9.70 per hour. https://www.minimum-wage.org/new-york. If the respondent worked part-time (1,000 hours per year), he would generate $9,700. If that amount is added to his in-kind contributions from his family, his income would be approximately $25,000 annually, an amount in excess of 200 percent of the FPG.[FN19] Conversely, if he worked full-time - 2,080 hours per year - his income from that employment at minimum wage would be $20,176, which when added to the in-kind contributions from his family, would total more than $35,000 annually, an amount that exceeds 250 percent of the FPG. https://www.minimum-wage.org/new-york. In conducting this exercise, this court follows the guidance from the Third Department in Curley v. Klausen, 110 AD3d 1156 (3rd Dept. 2013). In that matter, the mother declared income of only $15,000 in a part-time job as a tax preparer, even though she had a bachelor's degree in accounting and could work full-time. [*14]The court, commented that "imputed income more accurately reflects a party's earning capacity and, presumably, his or her ability to pay." Id. at 1159. The court calculated her hours and rate of pay and imputed income to her "based on her underemployment and ability to earn more income" and set her income at $25,000 for purposes of calculating her contribution to her children's college expenses. Other courts have imputed income at minimum wage to parties with support obligations. Matter of Niagara County Dept.. of Social Servs. v Hueber, 89 AD3d 1440 (4th Dept. 2011) (minimum wage income imputed even though the payor was incarcerated); McAuliffe v. McAuliffe, 70 AD3d 1129 (3rd Dept. 2010) (age and health required no more than minimum wage as the basis for imputed income); Joffre v. Joffre, 29 AD3d 1149 (3rd Dept. 2006). By working full-time at a minium wage job - for which this court concedes he may be "over-qualified," - the respondent would cease to be eligible for appointment of counsel, even under the expanded guidelines set in the ILS Report.
This court notes that, in other contexts, to prove imputation of income, the party with the burden of proof must establish that jobs, which pay at the level of the imputed income, exist within reasonable proximity of the party against whom imputation is sought. The court declines to apply that rule here. First, the respondent here has the burden of proof to show that he meets the eligibility criteria - he has to show that he cannot generate income and hence qualifies for counsel. He must show that there are no jobs for which he is qualified in this region and which are easily accessible to him and this court declines to shift the burden to any other party. Second, there is no proof that the respondent could not adequately perform a minium wage job. There is no evidence of any impairments that would make such employment unattainable. The proof rebuts that inference: the respondent claims he is highly-intelligent and capable of performing a myriad of high paying jobs. There is no evidence of any conflicting time demands that would preclude full-time employment at minimum wage. While the respondent testified that he was a stay-at-home parent for some time, the children in this matter are now both in high school. There is no evidence that they continue to need a "stay-at-home" parent.[FN20] Third, the court declines to require that any other party in this hearing carry the burden of proof and prove, by the preponderance of the evidence, that there are minimum-wage jobs, for which the respondent is qualified, that are readily available. Relieving the respondent from this aspect of his burden of proof is especially pertinent in this instance because the proof unequivocally establishes that the respondent has never sought any full-time employment within the time this matter has been pending before the court. Having never sought full-time employment, the respondent cannot reasonably suggest that there are no full-time minimum wage jobs for which he is qualified. In essence, this respondent takes the position that this court should find him a job before imputing income to him, even though he has never looked for one. The Court is not in the employment search business and declines to do what the respondent has apparently never done.
Finally, this court has discretion to consider an even higher imputation of income than that afforded by a minimum-wage job. The respondent in this matter identified a series of jobs for which he would be easily qualified, and others, for which he could be qualified if he obtained [*15]certification as a teacher from the State of New York. Among the jobs which he said he was qualified for include an actuary or financial computation specialist. He also holds a degree in engineering, although this court recognizes that his failure to hold a full-time job in the engineering field during the last 20 years obviously reduces his value in that profession. This court also acknowledges that there was no proof in the record about salaries paid to individuals with the respondent's educational credentials. This gap in the proof can be filled by access to state and federal job, employment and salary information. The New York State Bureau of Labor Statistics estimates in the Finger Lakes region that the median annual salary of individuals in Science, Technology, Engineering and Math ("STEM") careers is $64,600, ranging from computer programmers that have a median salary of $59,200 to computer and information systems managers that have a median salary of $111,100. https://labor.ny.gov/stats/stem_factsheets.shtm. In addition, an entry level actuary has an annual average salary in Rochester of $64,530, according to http://www1.salary.com/NY/Actuary-I-salary.html.[FN21] In considering imputation based on these figures, the court faces a dilemma. On one hand, it would be unfair to impute a salary, commensurate with the respondent's experience in engineering and math, equal to the salaries cited above, even if they are entry level salaries, as the respondent's lack of work experience may be barrier to his attaining these positions. On the other hand, he has voluntarily excused himself from employment for almost two decades - seemingly without justification - and if he had obtained a job in these fields, even in 2005 (when his children went to school), he would have salary far higher than an entry level position. It is difficult for the respondent to suggest these salaries are out of his reach, when he has made almost no effort to obtain such a position. Under the circumstances, this court could impute an entry level salary of an actuary - $64,530 - to the respondent because he acknowledged he could do the job.
Similarly, if he sought certification as a teacher in the public schools, his income would also easily exceed $50,000 annually. According to data provided by the U.S. Department of Labor's Bureau of Labor Statistics ("BLS"), New York is the second-highest paying state in the nation for elementary school teachers. Teachers in New York earn an average annual salary of [*16]$67,940,(about $13,000 more than the national average). New York's middle school teachers are the highest paid of any middle school teachers in the country, earning an average of $70,670 each year, which is about $16,000 more than the national average for this category. High school teachers in New York are also the top earners in the nation in their grade-level classification, averaging $70,400 per year, which is about $15,000 more than the national average. http://www.teaching-certification.com/new-york-teaching-certification.htmlNo.initial-cert. Starting teacher salaries in New York average $43,839. http://www.nea.org/home/2012-2013-average-starting-teacher-salary.html. In order to be certified as a high school mathematics instructor, the respondent would need to pass a mathematics test, which given his educational background, he would have a significant chance to pass. The court acknowledges that these salaries are median and do not reflect entry level positions. In addition, a 2012-2013 study found that the median salary in New York State for an entry level teacher with a master's degree was $43,928, and the average salary, for the same position, was $47,215. Colvin, et al, New York State Teacher Salary Report, Cornell University, ILR School, 2012-2013. In the same report, suburban school districts had a median starting teacher's salary, with a master's degree, of $55,706. Finally, teaching jobs that do not require NYS certification also exist. In one short foray on the internet, this court found, as the second entry-level job listed on a website, the following: Math Teacher, Young Women's College Prep Charter School - Rochester, NY, salary = $44,000 - $65,000 a year. http://www.teaching-certification.com/new-york-teaching-certification.html#initial-cert.
Under these circumstances, this court imputes $50,000 as income for which the respondent in this instance is well-qualified and which, with a modicum of effort, he could easily obtain. This amount is justified by judicial notice of the website information set forth above, the family support, and the respondent's own stated income. There is no evidence in this record to rebut an imputation of this income to the respondent. In this court's view, if the respondent had been employed in a full-time capacity for any significant time during the last two decades since he obtained a master's degree, his actual income would easily exceed $50,000. Having concluded that the respondent has imputed income of $50,000 annually, this court holds that he is not eligible for the appointment of counsel, under the ILS Guidelines, or any reasonable criteria set forth under the applicable eligibility statutes.
In seeking to avoid imputation, the Public Defender offers several arguments. First, the Public Defender argues that the respondent needs counsel now and to impute income based on potential future earnings deprives him of counsel when he needs it most. The argument is easily rebutted by reference to the imputation of income in family support matters. In those cases, parents, with obligations to support their spouse and family, argue against imputation, claiming that they do not then have the available income to pay family support, even though the courts found that they had the capability to earn and pay more. The obvious implication of those court decisions is that New York State's public policy is that any individual, faced with supporting his family (or, in this case, his defense for violation of a court order[FN22] ) - must perform to his or her [*17]highest "capability" and secure new, high-paying employment — commensurate with their abilities - quickly. The fact that the payor may not have the current resources, plays second fiddle to his family support obligations. The same public policy underlies the statutes that permit appointment of counsel only when an individual is "unable to retain counsel." A compelling logic, inherent in the Legislative command in the statutes, drives imputation in this case: before seeking public assistance for legal services, a highly skilled individual should exhibit the same initiative and diligence as is required of someone supporting their family. If it is not unfair to require husbands and wives to find better jobs to fully support their families, how can it be unfair to require the same diligence and work ethic of this applicant before he obtains a substantial public benefit in the form of free legal assistance in a custody matter?
In regard to the argument of imminent need for counsel, one other consideration favors imputation. The Domestic Relations Law seeks to "level the playing" field for litigants in family-related matters by creating a presumption that the lesser moneyed spouse is presumed entitled to an award of legal fees in most instances. DRL § 237 (a); O'Shea v O'Shea, 93 NY2d 187, 193 (1999). In this case, the logic which drives an award of interim legal fees in a matrimonial matter is reversed. In this instance, if the father obtains no-cost legal assistance - when he could afford it - the playing field is not equal. In this instance, the mother of the children has been paying private counsel fees to defend the obligations established in the couple's settlement agreements and prior court orders. She faces the economic realities of the cost of defending her custody rights and those costs, as often occurs, are significant factors that drive settlement of disputes. If the father, in this case, obtains the free legal services of the public defender despite his ability to earn the sums to pay private counsel fees, he has no "skin in the game," which would, from a financial perspective, tilt the otherwise equally balanced scales of justice lopsidedly in his favor.[FN23]
Second, the Public Defender argues that this court must consider that, as a practical matter - right now - the respondent does not have the available money to pay private counsel. There are facts that suggest otherwise. The respondent testified that he had more than $7,000 available in the bank. He suggested the funds were restricted by student loan requirements, but he produced no evidence that these funds were so restricted and the court, in the absence of any [*18]documentation or other proof restricting the funds, declines to conclude that the funds are unavailable. The payment of $7,000 (or even $3,500) would cover a substantial portion of any fees in the contempt proceeding. There is no evidence that withdrawing these funds would change any aspect of the respondent's lifestyle.[FN24] The absence of any evidence regarding the cost of obtaining competent counsel to represent the respondent in the contempt proceeding or the child custody proceeding further colors this court's conclusion. There was no testimony of the "going hourly rate" for such services in the Monroe County legal community. There was no evidence that indicated how many hours the respondent would need from private counsel to represent his interest in either the contempt action or the custody dispute. In short, there is no evidence before this court to suggest that private counsel fees, for the services needed from this respondent, would exceed the $7,000 that he currently holds in his bank accounts.[FN25]
Third, the Public Defender argues that this court should forego imputation and resort to Section 722-d of the County Law, which permits the court to order the party who has appointed counsel to repay the cost if, after the services are over, it turns out that the litigant could have afforded them. NY COUNTY LAW §722-d. This after-the-fact remedial measure has been described by one court as "a grossly under-utilized weapon in the battle of balancing a defendant's right to counsel and the exploding financial burden to the State of providing free representation to those who are not fully able to afford private counsel." People v Mion, 31 Misc 3d 1204 (A) (City Ct. Yonkers 2011); see also People v. Lamont, 2017 NY Misc Lexis 343 (City Ct. Rye 2017) (deciding that a "proper allocution" was required to test indigency and requiring an applicant for counsel to assign illiquid assets to cover the cost of counsel).[FN26] However, even the ILS and the courts have recognized that this "wimpy,"[FN27] "after-the-horse-is-out-of-the-barn"[FN28] [*19]approach yields little or no benefit to the state. Its apparent lack of use by the courts demonstrates its limited value to the public entities that front the cost of legal representation. Given its limited use, the threat of an order under Section 722-d creates no incentive for a litigant to work to repay the cost of their assigned counsel after the fact.[FN29] The courts that have recently utilized Section 722-d have done so with reluctance. In Abadi v. Abadi, 48 Misc 3d 380 (Sup. Ct. Kings Cty. 2015), the court reserved its right to issue a 722-d order, but because the applicant had a master's degree in business, it held that the applicant had an obligation to seek employment outside his professional speciality. In People v Lamont, 2017 NY Slip Op 30156 (U) (City Ct. Rye, Westchester Cty. 2017), the court required an assignment of assets by an applicant before appointing counsel. See also Matter of Cherrez v. Lazo, 102 AD3d 782 (2nd Dept. 2013) (court ordered applicant to pay the attorney assigned to represent him the difference between the amount the attorney would charge a privately retained client for the services rendered and the amount the attorney claimed from the assigned counsel plan). Having been charged with determining eligibility before granting a substantial public benefit, this court declines to punt the eligibility question to a later date. Based on available data, it is unlikely that anyone would ever determine the applicant's ability to pay "after-the-fact", or that the public entity, that paid for the services, will ever engage in the long legal process to recover the cost of the publicly-funded [*20]legal services after the matter is resolved and the beneficiary has no ties to the court system..
In reaching this conclusion to impute income to this applicant for appointed counsel at public expense, this court is cognizant of the potential widespread implication of this holding. This court does not underestimate an individual's right to counsel in a contested custody or contempt proceeding, as the court's earlier citations affirm. When respondents apply for counsel, the Public Defender - or any reviewing agency - may have few resources to check the veracity of an applicant, much less their income potential. The reviewing agency will be very reluctant to test the applicant's unsworn or even sworn statements of income or challenge their capability for employment. Any extended review by the Public Defender or any other authority may delay appointments and potentially compromise the legal standing of applicants, especially in the context of appointments of counsel in urgent civil matters.
As this court noted in an earlier decision, the Legislature vested this court with an obligation regarding the assignment of publicly-funded attorneys. The court must balance the right to counsel versus the scarce public resources necessary to finance that appointment and whether the applicant has the capability to generate sufficient income to retain counsel. The courts of this state have long held that an individual, as part of their family obligations, must utilize their best efforts to support their family and can be required to pay higher family supports than their current income would otherwise dictate, if he or she has untapped capabilities. The courts of this state are reluctant to allow individuals to shirk their family support obligations because, as often may happen, if a spouse or parent fails to adequately support their family, the burden of that support can fall to the government. Given a choice between asking a family member to generate more income consistent with their capabilities or having the state support their family, the courts of New York have consistently opted for the former under the theory of imputation of income. The same logic drives the court in this case. When this respondent can generate income sufficient to retain counsel, but elects not do to so, this court is reluctant to pass the cost of counsel onto the public. Imputation of income, which is justified in other contexts to ensure that a parent contributes, commensurate with their economic capabilities, to the well-being of their family, merits the same consideration when public resources are at stake. The applicant here has failed to meet his burden of proof to demonstrate he is "unable to retain counsel." New York Family Court Act § 262 (a). CPL § 180.10 (3) (c); New York Judiciary Law § 35; New York County Law § 722-a. Undisputed proof establishes that this respondent has a clear capability to generate sufficient income to retain his own counsel - and he should.
The respondent's application for appointment of counsel is denied.
Dated: May 19, 2017
Richard A. Dollinger, A.S.C.J. Footnotes
Footnote 1: In a May 2015 order, this court sentenced the respondent to weekends in jail for violation of prior court orders.
Footnote 2: In their separation agreement, the parents concluded that the husband would pay no child support and his income was acknowledged to be "zero." The couple reached that conclusion in part because the father waived any claim to his wife's retirement accounts. While these facts may justify a waiver of the father's support obligations to his children, that determination is not binding on this court as it considers imputing income to him for purposes of determining whether he qualifies for a publicly-funded attorney. In addition, the agreement contains an acknowledgment that the wife could seek imputation of income against the father and suggests that the imputation would be approximately $45,000 annually.
Footnote 3: In his application, the respondent submitted an affidavit from the Public Defender in which the attorney states that after the respondent delivered his tax returns for 2014 and 2015 and a statement of his assets, the public defender requested a "clear" from the chief of the Defender's Investigations Section. It was apparently granted and lead to the application before this court. There is no evidence of the criteria used by the Public Defender to obtain this "clear." In the application, the Public Defender acknowledges that the respondent has an income of less than 125 percent of the federal poverty guidelines. As discussed infra, this court, in evaluating the respondent's eligibility for counsel, has used the higher standard suggested by the Indigent Legal Services ("ILS") Office of the New York State Executive Department.
Footnote 4: The respondent admitted that his engineering degree had a "lot of practical applications."
Footnote 5: The respondent described his departure from the RIT adjunct position as follows: "There was a conflict with the U of R, so I had to bail on that."
Footnote 6: The Volunteer Legal Services Project (VLSP) is an award-winning legal services provider in Monroe County that recruits and assigns attorneys to represent individuals pro bono in legal matters.
Footnote 7: This court is familiar with rates charged by private counsel in contested matrimonial matters in this judicial district. The court routinely grants attorney fees applications and has reviewed dozens of affidavits from counsel setting forth fees. During the course of this hearing, the Public Defender did ask this court to take judicial notice that attorneys "generally don't work for free for individual private clients." This court took judicial notice of that fact. The court was never asked to take judicial notice of any rates of compensation for private attorneys in family matters. Regardless, the court declines to take judicial notice of the "going-rate" for fees in these matters. Given the wide variety of rates, this court will not predict how much time or fees this case would require to complete. In short, this court declines to speculate on the cost of private counsel for this respondent.
Footnote 8: Although addressed in an earlier opinion, the respondent's attainment of public-financed counsel — while his ex-wife spends her private dollars to defend prior court orders - "obliterates the level playing field" that the Court of Appeals - and the state Legislature - envisioned should predominate in matrimonial-related litigation. In Cohen v Cohen, 33 Misc 3d 448 (Sup.Ct. Nassau Cty. 2011) , the court noted: Such a scenario [appointment of counsel without meeting the "unable to retain" test] erodes confidence in our court system, and is an affront to the bar, our courts, and the public at large. Perhaps more compelling are the circumstances here, where the monied spouse seeks to receive free legal services and the non-moneyed spouse pays for her own legal representation, completely obliterating the "level playing field," a basic tenet of matrimonial law, as articulated by our Court of Appeals. Id. at 452.
Footnote 9: The Appellate Division requires that a Notice of Motion for poor person relief be forwarded to the County Attorney and requires copies be forwarded to opposing counsel. This court, never having seen this respondent's application, cannot determine whether that process was followed here. The application also contains a certification by attorneys that the applicant was assigned counsel in the trial court "upon a determination that appellant was indigent and qualified for poor persons relief and assignment of counsel." Based on those facts, the attorney can certify that the "appellant continues to be indigent" and is eligible for poor person relief. The certification does not use the statutory language of "unable to retain counsel" and instead uses the phrase "indigent." There is no requirement that an actual "determination" of "indigency" be made and no indication that anyone - court or other personnel in the Appellate Division - have ever examined the representations made by the applicant.
Footnote 10: In a prior opinion, this court analyzed the standards for appointment of indigent counsel under New York law. Carney v Carney, 54 Misc 3d 947 (Sup. Ct. Monroe Cty. 2016).
Footnote 11: Another trial court emphasized the importance of this qualifying criteria: " . . . the expense of court-appointed counsel, borne here by the public at large, is wholly misspent and limited public resources are unduly wasted when compensation for legal services is provided under circumstances where the litigant's true and accurate financial status at the time of appointment is misstated . . ." Cohen v. Cohen, 33 Misc 3d 448, 452 (Sup. Ct. Nassau Cty. 2011). A second court echoed the same sentiment. "The right to counsel appointed by the court is not limitless and those resources must be utilized for those who truly cannot afford counsel." Abadi v. Abadi, 48 Misc 3d 380 (Sup. Ct. Kings Cty. 2015).
Footnote 12: In its published "guide" to the courts ILS sets forth circumstances in which an applicant is presumptively eligible for appointment of counsel. While the financial arguments advanced by ILS in support of such a presumption have practical validity, there is nothing in Section 832 of the Executive Law which authorizes ILS to establish presumptive thresholds for such appointments. If the Legislature had intended to extend to the ILS authority to establish such presumptions — and correspondingly strip courts of the ability to decide eligibility based on their own evaluation of an applicant's financial circumstances - it could have easily done so, as it has in other areas in the family law context DRL § 237 (a) (lesser moneyed spouse entitled to a presumption for legal fees). In addition, advocates surveyed during the preparation of the guidelines, claimed that using a presumptive model for eligibility will "obviate the need for a detailed, complex analysis" and added that "it was not necessary to engage in a time-consuming eligibility assessment for each defendants because there are shortcuts that jurisdictions can and should take." ILS Report, p. 20, citing the 2008 guidelines promulgated by the Brennan Center for Justice. Eligible for Justice: Guidelines for Appointing Defense Counsel (hereinafter, the "Brennan Center Guidelines"). In essence, this section of the guidelines advocates that the court abandon its current inquiry under the statutory command in favor of an artificial standard modeled simply on convenience. That proposed model ignores individual responsibility and individual circumstances that the statutes require this court to examine in detail. For these reasons, this court declines to adopt any rule of presumptive eligibility as advocated by ILS.
Footnote 13: This court was unable to determine whether the ILS Guidelines have the force of a rule or regulation under the state's Administrative Procedure Act. Alca Indus. v. Delaney, 92 NY2d 775 (1999) (identifying rulemaking as "any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future"). The court reviewed the New York Code of Rules and Regulations and could find nothing therein related to determining income eligibility for those seeking appointment of publicly-financed counsel. For these reasons, the court declines to give these guidelines any status as rules or regulations which might require this court defer to ILS on determining the standards for eligibility. See Big Apple Food v. Street Vendor Review Panel, 90 NY2d 402, 408 (1997) ("under the general principles of American administrative law . . . it is sufficient to say that the judicial deference to be accorded a legislative rule is a strong form of deference attributable to the fact that the agency is exercising legislative power granted it").
Footnote 14: The ILS Guidelines include other criteria — incarceration or that the applicant was "deemed eligible" within the past six months — but these criteria are inapplicable here.
Footnote 15: This court acknowledges that going to work to earn money would be a substantial change in the applicant's lifestyle, but, there is no evidence that it would unduly burden him.
Footnote 16: This court is not required to find that the respondent has deliberately reduced his income to justify imputing income to him. Decker v. Decker, 2017 NY App. Div. LEXIS 1579 (3rd Dept. 2017).
Footnote 17: According to income tax returns the respondent reported $13,670 in income in 2014, and $11,555 in 2015. He received almost $4,000 in refunds for those two years.
Footnote 18: In its Guidelines, the ILS suggests that this court cannot consider any anticipated future support in determining the respondent's eligibility. However, in this case, the court need not speculate about future family support: it is undisputed that his family already supports him. The support — which has apparently persisted for years - is present and continuing and not speculative.
Footnote 19: If the respondent worked only part-time - 1,000 hours per year - it seems apparent that he could still pursue his tutoring business, which, by his own admission, consumes less than 10 hours in student contact each week.
Footnote 20: The children are 15 and 17 years old. This court could easily conclude that the respondent could have returned to the workforce several years ago. There is no evidence in this matter that the father stayed at home to save the cost of day care. At the hearing, he made no such claim.
Footnote 21: This website describes an Actuary I as having the following job requirements: Conducts analysis, pricing and risk assessment to estimate financial outcomes. Applies knowledge of mathematics, probability, statistics, principles of finance and business to calculations in life, health, social, and casualty insurance, annuities, and pensions. Develops probability tables regarding fire, natural disasters, death, unemployment, etc. based on analysis of statistical data and other pertinent information. May require a bachelor's degree in a related field and 0-2 years of experience. Has knowledge of commonly-used concepts, practices, and procedures within a particular field. Relies on instructions and pre-established guidelines to perform the functions of the job. Works under immediate supervision. Primary job functions do not typically require exercising independent judgment. Typically reports to a supervisor or manager. http://www1.salary.com/NY/Actuary-I-salary.html. Based on the respondent's testimony, he could easily qualify for this starting position, as the job requires no prior experience and only a bachelor's degree. He admitted he would qualify for such a position.
Footnote 22: Throughout this opinion, this court has focused on the respondent's request for counsel in the defense of the contempt action against him. However, he also seeks a modification of the current custody plan and, as matter of law, if he meets the eligibility requirements under the pertinent statutes, he would be entitled to counsel to advance that claim as well. Section 262(a)(v) of the Family Court Act declares an indigent parent seeking custody or contesting a substantial infringement of her right to custody has a right to counsel. Herbert L. v Maria L., 32 Misc 3d 1217 (A) (Sup.Ct. Westchester Cty. 2011) (court finds that a parent's right to counsel in custody matters in the Family Court pursuant to Section 262 (a) (v) (ii) of the Family Court Act is equally applicable to such cases pending in Supreme Court); Matter of Kristin R.H. v. Robert E.H., 48 AD3d 1278 (4th Dept. 2008) (parent has "the right to the assistance of counsel" in a custody proceeding).
Footnote 23: The phrase "skin in the game," refers to the belief that the best way to insure that a party to a divorce will litigate reasonably and responsibly is to require the party to share in the cost of the litigation. Sykes v. Sykes, 41 Misc 3d 1061, 973 NYS.2d 908 (Sup. Ct. NY County 2013), cited in P.S. v M.S., 54 Misc 3d 1202 (A), p.13, n.3 (Sup. Ct. Orange Cty. 2016),
Footnote 24: In addition, this court notes that it frequently occurs that litigants in matrimonial matters use credit cards to advance fees for counsel. There is no evidence that this respondent ever considered such an approach.
Footnote 25: The ILS Guidelines cautions that no one should have to borrow or take money out of their accounts if the consequence is to severely impact their lifestyle or create additional debt. There is no evidence in this record that paying even the entire $7,000 for private legal services would cause any change in the respondent's lifestyle.
Footnote 26: Section 722-d contains language that gives a court the ability to require an applicant, found to be "financially able to retain counsel," to make a partial payment for appointed counsel "as the interests of justice" may dictate. Cohen v. Cohen, 33 Misc 3d 448 (Sup.Ct. Nassau Cty. 2011)
Footnote 27: The use of this word as a description is derived from the saying "I will gladly pay you Tuesday for a hamburger today" which was oft spoken by J. Wellington Wimpy, a character in the Popeye comic. In re Cook, 322 B.R. 336, 339 n. 5 (Bank. N.D. Ohio 2005). A New York judge, considering the appointment of counsel, adopted the same metaphor to describe the use of County Law Section 722-d that permits the defendant to obtain counsel based on a promise to repay at a later time while suggesting another approach: This type of financing has been made famous by the Popeye character J. Wellington Wimpy who started saying "I'll gladly pay you Tuesday for a hamburger today" as far back as 1931. The solution is simple - have the defendant with illiquid assets assign an amount equal to the counsel fees paid to the assigned counsel so that if and when the assets become liquid, the State can recoup its expenditures. Thus, the defendant gets is counsel immediately, and the State will not be paying for counsel for defendants who can afford to pay for a private attorney, but just not now. People v Lamont, 2017 NY Slip Op 30156 (U) (Cty. Ct. Rye Westchester Cty. 2017).
Footnote 28: This "proverbial" saying is found elsewhere in New York case law. See People v Washington, 107 AD3d 4, 14 (2d Dept. 2013).
Footnote 29: ILS, in its Determining Eligibility for Assignment of Counsel in New York: A Study of Current Criteria and Procedures and Recommendations for Improvement Final Report, ("the Final Report") examined data on repayments under County Law § 722-d, submitted by each county to the Office of the State Comptroller. According to 2013 data, only 17 counties reported receiving payments as a result of orders for partial payment of indigent legal services. The amount of money received ranged from $300 (Cortland County) to $21,253.50 (Monroe County). The total amount collected among the 17 counties was $98,360.13, which is an average of $5,785.89 among the 17 counties that received any money from County Law § 722-d payments (and $1,586 if averaged for all 62 counties). In 2013, counties reported that they spent a combined total of $423,178,526 on indigent legal services; the total of $98,360 collected from County Law § 722-d orders is less than 1/20 of 1% of this spending. This total does not take into account the administrative costs associated with collecting partial payment orders issued pursuant to County Law § 722-d. ILS Final Report, February 12, 2016, p. 35, n. 79.
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