Faulting a Family Court judge for her "predetermined and unreasonable refusal" to let a father proceed pro se in a custody and visitation matter, a Brooklyn appellate panel has ruled another judge should take the case on remand.
Family Court Judge Marlene Budd in Suffolk County "committed reversible error by depriving the father of his right to self-representation," a unanimous panel of the Appellate Division, Second Department, ruled in Matter of Massey v. Van Wyen, 2012-04016.
The unsigned opinion reversed Budd's modification of a custody and visitation arrangement between George Massey and Kirsten Van Wyen over their 9-year-old daughter.
The panel said that another judge should preside because of Budd's "increasing intolerance" for Massey following his thwarted pro se bid.
Justices Peter Skelos, Thomas Dickerson, Plummer Lott and Sheri Roman sat on the panel. The case was submitted for decision on April 1.
In August 2010, the unmarried couple entered a stipulation of settlement awarding Van Wyen residential custody and giving Massey visitation, along with the right of first refusal if Van Wyen could not watch the girl.
Less than a year later, Massey asked for residential custody, claiming Van Wyen denied him parenting time, among other things.
Van Wyen countered with her own modification petition, saying there had been a change in her employment circumstances. Moreover, she claimed Massey could not accommodate overnight visits and did not communicate with her.
In the first court appearance on the petitions before Budd, Massey had no attorney and told Budd he wanted to represent himself.
At a second court appearance, Massey repeated his wish to appear pro se.
Budd then questioned him about his desire to represent himself, his education, work experience and experience as a pro se litigant.
Massey told the judge he was college-educated and worked in the mortgage loan industry for 20 years. Massey also said he had represented himself in state and federal court before.
Budd was not persuaded.
She said it was "not [her] policy to allow anyone other than attorneys to proceed pro se."
Budd said she was appointing a "standby" or "advisory" counsel for Massey.
'I'm Not Asking You Anything'
After Massey agreed to the "advisory" attorney, Budd, according to the transcript, said, since Massey was "taking the assistance of an attorney, it became clear to me that Mr. Massey, you just really wanted to get an attorney. You were just waiting."
"Not the case at all. I'm ready to go pro se your honor," Massey said.
"Mr. Massey I'm not asking you anything, I don't have a question posed to you," Budd responded.
"I just wanted to get that on the record, that's all," said Massey.
"You constantly do this to me. You argue all the time. I'm not asking you anything. You are only to speak if I ask you a question. Otherwise please remain silent. Okay? Thank you," said Budd.
After Massey submitted a motion to dismiss Van Wyen's modification petition, Budd criticized him for failing to consult with his "advisory" counsel.
She then dismissed Massey's own petition "for failure to prosecute" because Massey "did not have an attorney."
Massey appealed the denial.
Several months after the denial, Budd granted Van Wyen's modification petition.
The Second Department panel said Budd properly questioned Massey on his background and warned about the pitfalls of representing himself.
Still, "the father acknowledged his understanding of those perils, and repeated his desire to proceed pro se. There is no indication that the father ever wavered or was unsure of his decision."
The panel also noted that Budd did not restrain the appointed counsel to an "advisory role," pointing to Massey's motion that was doomed because he did not consult his "advisory" attorney.
"Under these circumstances, it is clear that the Family Court was not actually appointing 'advisory' counsel, but, rather, was appointing counsel to represent the father; in other words, the court was 'forcing a lawyer upon [him],'" the panel said.
Massey was represented on appeal by Marina Martielli of East Quogue, who called the ruling "a great decision for my client."
She added, "I think that the lower court placed Mr. Massey in an unenviable position of, first of all, not finding him competent to represent himself after a searching inquiry and then rejecting his application to dismiss the modification petition, stating it was insufficient as a matter of law, and it turned out the matter of law was that he had no attorney to represent him, which placed him a sort of Catch 22."
John Belmonte of the Legal Aid Society of Suffolk County represented the child.
@|Andrew Keshner can be contacted at email@example.com.