Nancy Waldbaum Nimkoff, Respondent, v Ronald A. Nimkoff, Appellant.
Supreme Court, Appellate Division, First Department, New York
18 A.D.3d 344 | 797 N.Y.S.2d 3
Order, Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered September 22, 2004, which, to the extent appealed from, denied defendant’s motion to disqualify the law firm representing plaintiff, unanimously affirmed, without costs. Order, same court and Justice, entered December 3, 2004, which, to the extent appealable, denied defendant’s motion for renewal, unanimously reversed, that portion of the motion granted, and, upon renewal, the prior order adhered to, and otherwise affirmed, without costs. Order, same court and Justice, entered December 23, 2004, which directed that all transfers of the parties’ child be supervised by Comprehensive Family Services, and that the parties share equally the cost of such supervision, unanimously affirmed, without costs. Order, same court and Justice, entered December 20, 2004, which,
The parties were married on September 8, 2001, their daughter was born on July 17, 2002, and the parties separated on October 28, 2002. This divorce action was commenced on December 4, 2002.
Initially, the motion court properly denied defendant’s motion to disqualify the entire law firm representing plaintiff. Defendant’s motion was based on the fact that Allison Keil, an associate in the firm representing plaintiff, had previously worked for another firm while that firm was representing defendant in this litigation.
Imputed disqualification pursuant to
Here, defendant fails to establish that confidences were revealed to Keil that could be used to his detriment in the ongoing custody dispute. Nor is there any showing that Keil could have availed herself of other material of a confidential nature that would have an impact on the custody and visitation dispute. In contrast, the prejudice to plaintiff if she were required to hire new counsel, while not of paramount importance, cannot be disregarded or minimized here.
Although an in-court conversation between Keil and plaintiff may have had the appearance of a breach of the so-called “Chinese Wall” erected by counsel’s firm, under the circumstances we are satisfied that it had no effect on defendant’s rights and does not warrant the firm’s disqualification.
The IAS court erred in barring defendant from representing himself. Although the right to represent oneself is not absolute, any restriction must be carefully scrutinized (Walker & Bailey v We Try Harder, 123 AD2d 256 [1986]). Even where a self-represented attorney-litigant is held in contempt due to misconduct during court appearances, a deprivation of the right to self-representation must be extremely well supported.
Here, even though defendant’s interests might be better served with representation by another attorney, and his self-representation may make the litigation process more difficult or unpleasant, the record was inadequate to justify barring him from acting as his own counsel. If there are litigation-related activities, such as depositions, where defendant’s self-representation might be cause for concern, the problem can be avoided by ordering that they be conducted under the supervi
The IAS court’s out-of-hand denial of defendant’s application for overnight visitation, which he made in August 2004 when the child was two years old, constituted an improvident exercise of discretion. The parties initially entered into a so-ordered stipulation on January 23, 2003, when the child was six months old, in which defendant was given limited visitation, not including overnight stays. Since that time, Dr. Bernice Schaul, the court-appointed forensic psychologist, conducted an evaluation of the parties and the child, and in December 2003 issued a report and recommendations, including the recommendation that “it might be considered to . . . [b]egin overnight visits within the next three months, when Mr. Nimkoff is fully recovered [from a medical procedure] and the parents can agree on the parameters for such visits.” There was no indication that defendant’s relationship with the child was such that overnight visitation would not be in the child’s best interest.
The court’s observations of defendant’s demeanor and conduct in court should not be the focus when considering the visitation arrangement. The focus must be solely on the child’s best interest, which is normally best protected by allowing the development of the fullest possible healthy relationship with both parents (see Weiss v Weiss, 52 NY2d 170 [1981]). The negative aspects of defendant’s temperament and motivations, upon which Dr. Schaul commented, were not of a nature as to present any risk to the child resulting from an appropriate expansion of the parent-child relationship with the noncustodial parent by increasing visitation to include overnights. We therefore provide for the immediate commencement of overnight visitation on alternate weekends, and remand to the court for fuller determination of the visitation arrangements in the best interests of the child. We are confident that the hearing court will exercise its discretion in this regard with adequate consideration of the crucial role the noncustodial parent can play in the development of the young child.
We affirm that portion of the order entered December 23, 2004, directing that the costs of the court-appointed supervisor of visitation exchanges be shared equally. That portion of the order entered December 20, 2004, which directed that defendant would be responsible for all “pick-ups” and “drop-offs,” is modified to direct that the parties share responsibility for driving during the weekday visitations, in the manner plaintiff described in her motion dated September 21, 2004.
Finally, the parties’ prenuptial agreement should render a
Concur—Buckley, P.J., Saxe, Ellerin, Nardelli and Williams, JJ.