Holmes v. Holmes

Aug 30, 1982
Versions:89 A.D.2d 921
454 N.Y.S.2d 22
1982 N.Y. App. Div. LEXIS 18106

In a civil contempt proceeding pursuant to section 753 of the Judiciary Law and section 245 of the Domestic Relations Law, the appeal is from an order of the Supreme Court, Nassau County (Delin, J.), entered August 12, 1981, which found appellant guilty of contempt and directed that he be incarcerated for a period of 60 days to be served on .weekends. Order reversed, without costs or disbursements, and matter remitted to Special Term for a new hearing in accordance herewith. After Special Term denied appellant’s request for assigned counsel, he was adjudged in contempt of court for willful and contumacious refusal to comply with a prior court order fixing his alimony and child support obligations. He argues that counsel should have been assigned to him despite the language of section 770 of the Judiciary Law, which authorizes such assignment in the court’s discretion if the offender appears financially unable to obtain counsel. We do not construe that section as vesting discretion in the court’s exercise of its fact-finding function to establish an offender’s indigency; rather, the language of that section should be read as requiring the court to make a choice once indigency is found: either retain the power to punish the offender with a term of imprisonment by assigning counsel, or surrender that power by proceeding without assignment of counsel. “[N]o person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial” (Argersinger v Hamlin, 407 US 25, 37; see Scott v Illinois, 440 US 367; cf. Lassiter v Department of Social Serus. of Durnham County, 452 US 18). Although by finding appellant in contempt, Special Term necessarily found that he was not so indigent as to be unable to make even token payments toward prior court orders, the record discloses no attempt by the court to ascertain whether he had the wherewithal to retain private counsel. Given insufficient information for this court to make a determination of such indigency, and given the length of time'that has elapsed since the order appealed from was made, this matter must be remitted to Special Term for a new hearing on the preliminary issue of appellant’s application for assignment of counsel and on the main issue of the respondent’s motion to have him adjudged in contempt of court (see Matter of Jennings v Jennings, 42 AD2d 568). O’Connor, J. P., Thompson, Niehoff and Rubin, JJ., concur.