Opinion
914 CAF 18–01461
11-08-2019
In the Matter of Ann GONZALEZ, Petitioner–Respondent, v. Brenden BEBEE, Respondent–Appellant.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–APPELLANT.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–APPELLANT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Wayne County, for further proceedings in accordance with the following memorandum: Respondent father appeals from an order that, in effect, confirmed the determination of the Support Magistrate, upon the father's purported default, that he willfully violated a prior child support order and directed that he be incarcerated. Initially, we agree with the father that, although he has presumably completed serving his term of incarceration, his appeal is not moot "because of the ‘enduring consequences [that] potentially flow from an order adjudicating a party in civil contempt’ " ( Matter of Jordan v. Reed , 175 A.D.3d 1006, 1007, 105 N.Y.S.3d 324 [4th Dept. 2019] ).
We further agree with the father that the Support Magistrate erred in allowing the father's attorney to withdraw as counsel and in proceeding with the hearing in the father's absence. "An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client ... [, and a] purported withdrawal without proof that reasonable notice was given is ineffective" ( Matter of Williams v. Lewis , 258 A.D.2d 974, 974, 685 N.Y.S.2d 382 [4th Dept. 1999] ; see CPLR 321[b][2] ; Matter of La'Derrick W. , 63 A.D.3d 1538, 1539, 880 N.Y.S.2d 805 [4th Dept. 2009] ). Here, the father's attorney did not make a written motion to withdraw; rather, counsel merely agreed when the Support Magistrate, after noting the father's failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel's decision to withdraw in accordance with CPLR 321(b)(2) renders the Support Magistrate's finding of default improper (see La'Derrick W. , 63 A.D.3d at 1539, 880 N.Y.S.2d 805 ), and Family Court thus erred in confirming those findings (see Matter of Manning v. Sobotka , 107 A.D.3d 1638, 1638–1639, 969 N.Y.S.2d 627 [4th Dept. 2013] ). We therefore reverse the order and remit the matter to Family Court for the assignment of new counsel and a new hearing on the violation petition of petitioner mother.