

Cutroneo v Cutroneo (2015 NY Slip Op 04083)





Cutroneo v Cutroneo


2015 NY Slip Op 04083


Decided on May 13, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 13, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.


2014-03860	ON MOTION
2014-04432
2014-08350
 (Index No. 20828/09)

[*1]Garynn R. Cutroneo, respondent,
vKenneth R. Cutroneo, appellant.


Lydia S. Antoncic, New Rochelle, N.Y., for appellant.
Bodnar & Milone LLP, White Plains, N.Y. (Elizabeth E. Erickson of counsel), for respondent.

DECISION & ORDER
Appeals from (1) an order of the Supreme Court, Westchester County (Francis A. Nicolai, J.), dated April 9, 2014, (2) an order of commitment of that court dated April 17, 2014, and (3) a money judgment of that court entered April 29, 2014. The order dated April 9, 2014, after a hearing, found the husband in civil contempt of court for failure to pay child support and maintenance in accordance with the terms of the parties' judgment of divorce and directed that he be incarcerated unless he purged himself of his contempt. The order of commitment, upon the order dated April 9, 2014, and the husband's failure to purge his contempt, directed that he be committed to the custody of the Westchester County Correctional Facility for a period of six months unless he purged himself of his contempt. The money judgment, upon the order dated April 9, 2014, awarded the wife a sum representing the husband's arrears for a certain period. The husband's assigned counsel has submitted a brief in accordance with Anders v California (386 US 738) in which she moves for leave to withdraw as counsel.
ORDERED that the motion of Lydia S. Antoncic for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to new counsel assigned herein; and it is further,
ORDERED that Marc Greenberg, Esq., 45 Knollwood Road, Suite #502, Elmsford, N.Y., 10523, is assigned as counsel to perfect the appeals; and it is further,
ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion and the respondent shall serve and file her brief within 30 days after the brief on behalf of the appellant is served and filed. By prior order on certification of this Court, the appellant was granted leave to prosecute the appeals as a poor person, with the appeals to be heard on the original papers (including a certified transcript of the proceedings) and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.
The brief submitted by the appellant's counsel pursuant to Anders v California (386 [*2]US 738) is deficient because counsel failed to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeals (see Matter of Liam Q. [Elizabeth P.], 123 AD3d 722; Matter of Griffin v Moore-James, 95 AD3d 1013, 1014; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252). Since the brief does not demonstrate that assigned counsel fulfilled her obligation to act "as an active advocate on behalf of [her] client, or that [s]he diligently examined the record" (Matter of Kenneth S., 104 AD3d 951 [internal quotation marks omitted]), we must assign new counsel to represent the appellant (see Matter of Liam Q. [Elizabeth P.], 123 AD3d at 722; Matter of Dylan Mc. [Michelle M. Mc.], 95 AD3d 1016, 1017; Matter of Griffin v Moore-James, 95 AD3d at 1014).
Moreover, upon this Court's independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the appellant's failure to pay child support as ordered was willful in light of his claim that he was laid off from his employment, allegedly conducted a diligent search for higher-paying work, and found a new position at a significantly lower salary (see Matter of Rubenstein v Rubenstein, 114 AD3d 798, 798-799; Ritchey v Ritchey, 82 AD3d 948, 949; Reynolds v Reynolds, 300 AD2d 645, 646), and whether the money judgment should have been entered prior to the determination of the appellant's pending motion to modify his child support obligation, which was filed during the period covered by the money judgment and could have retroactively altered his support obligations (see Sinanis v Sinanis, 67 AD3d 773, 774).
RIVERA, J.P., HALL, AUSTIN and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




