2015 NY Slip Op 07983
N.Y. App. Div. 2nd
2015

Matter of Zulme v Maehrlein

Appellate Division, Second Department

November 4, 2015

2015 NY Slip Op 07983 [133 AD3d 608]

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 30, 2015

In the Matter of Francelene Zulme, Respondent, v Jason Maehrlein, Appellant. (Proceeding Nos. 1, 2, 4.) In the Matter of Jason Maehrlein, Appellant, v Francelene Zulme, Respondent. (Proceeding Nos. 3, 5.)

Joseph J. Artrip, Cornwall, N.Y., for appellant.

Christopher E. Gurda, Middletown, N.Y., for respondent.

Robert M. Rametta, Goshen, N.Y., attorney for the children.

Appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated July 11, 2014. The order, inter alia, after a hearing, and upon the father‘s failure to appear at a continued hearing, granted the mother‘s petition to modify a prior order of custody so as to award her sole legal and physical custody of the subject children.

Ordered that the appeal from so much of the order as granted the mother‘s petition to modify a prior order of custody so as to award her sole legal and physical custody of the subject children is dismissed, without costs or disbursements, as no appeal lies from that portion of the order which was entered on the father‘s default; and it is further,

Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.

The father failed to appear at a continued custody hearing, and his attorney did not participate at that hearing in his absence. Thus, the father defaulted, and he may not challenge on this appeal the merits of that portion of the order which granted the mother‘s petition to modify a prior order of custody so as to award her sole legal and physical custody of the subject children (see CPLR 5511; Matter of Li Wong v Fen Liu, 121 AD3d 692 [2014]).

This Court may review the father‘s contention that the Family Court erred in its prehearing denial of his request for the assignment of new counsel, since that ruling was a subject of contest in the Family Court (see Matter of Munoz v Edmonds-Munoz, 123 AD3d 1038, 1039 [2014]; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907, 908 [2013]). However, upon review, the ruling was not an improvident exercise of discretion, since the father was not entitled to counsel of his choice and failed to establish that good cause existed to warrant the assignment of new counsel (see Matter of Wiley v Musabyemariya, 118 AD3d 898, 900 [2014]; Matter of DeMichiel v DeMichiel, 66 AD3d 894, 895 [2009]).

The father‘s remaining contentions are either without merit or not properly before this Court. Rivera, J.P., Balkin, Miller and Hinds-Radix, JJ., concur.