Opinion
2014-11-20
In the Matter of COLUMBIA COUNTY SUPPORT COLLECTION UNIT, on Behalf of Brooke L. PHILLIPS, Respondent, v. Joshua A. RISLEY, Appellant. (and Two Other Related Proceedings.).
Ted J. Stein, Woodstock, for appellant. Valerie Stote, Ulster County Department of Social Services, Kingston, for respondent.
Ted J. Stein, Woodstock, for appellant. Valerie Stote, Ulster County Department of Social Services, Kingston, for respondent.
Before: STEIN, J.P., GARRY, ROSE, LYNCH and DEVINE, JJ.
ROSE, J.
Appeals from four orders of the Family Court of Ulster County (Mizel, J.), entered May 8, 2013, which granted petitioner's applications, in three proceedings pursuant to Family Ct. Act article 4, to hold respondent in willful violation of a prior order of support.
Petitioner commenced the last of these three proceedings alleging that respondent (hereinafter the father) was in violation of a support order directing him to make certain child support payments. The father had been the subject of two previous violation petitions and, each time, he defaulted in his appearance at the inquest held by the Support Magistrate. In each of the proceedings, a warrant for the father's arrest was executed, he then appeared before Family Court at the confirmation hearing with assigned counsel and, failing to contest his lack of payment, he was found in willful violation of the support order and ordered to be incarcerated for six months, with each term suspended. In response to the petition in the last of these proceedings, the father again failed to appear. When he was eventually produced, he was again represented by the same assigned counsel and again determined to have willfully violated the orders of support. Family Court then ordered the father incarcerated for six months, revoked the two previously suspended orders of commitment and ordered that the terms of imprisonment run consecutively. The father appeals.
The argument that the father was denied due process because the Support Magistrate did not provide counsel at the initial inquest in these proceedings lacks merit. The father failed to appear at the initial inquest, despite the fact that he was properly served with the violation petition and provided notice of the hearing. Furthermore, the record reveals that each time the father did appear in Family Court, he was represented by assigned counsel. Under these circumstances, there is no basis for a finding that the father's due process rights were violated ( seeFamily Ct. Act § 262[a][vi]; Matter of Ball v. Marshall, 103 A.D.3d 1270, 1271–1272, 959 N.Y.S.2d 371 [2013] ).
Nor is there any merit to the father's contention that consecutive sentences were unauthorized ( seeFamily Ct. Act § 454[3]; cf. Matter of Walker v. Walker, 86 N.Y.2d 624, 627, 635 N.Y.S.2d 152, 658 N.E.2d 1025 [1995] ). Given the father's failure to contest the amounts due and his willful refusal to voluntarily pay them despite repeated opportunities afforded to him over more than three years, we find no abuse of discretion in the determination to run the sentences consecutively ( see Matter of Bonneau v. Bonneau, 97 A.D.3d 917, 917–918, 948 N.Y.S.2d 728 [2012], lv. denied19 N.Y.3d 815, 2012 WL 5308087 [2012]; Matter of Bucek v. Rogers, 301 A.D.2d 973, 974–975, 754 N.Y.S.2d 448 [2003]; Matter of Houk v. Meyer, 263 A.D.2d 688, 689, 692 N.Y.S.2d 854 [1999] ).
ORDERED that the orders are affirmed, without costs. STEIN, J.P., GARRY, LYNCH and DEVINE, JJ., concur.