Dtare decisis is the cornerstone of the common law. Sometimes, trial courts can evade its reach, recognizing the doctrine is “a principle of policy and not a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 US 106, 119 (1940). Here, this court confronts stare decisis squared: an appellate decision, virtually directly on point, which reversed a prior decision of this court stares in this court’s face and dictates its conclusion. In this matter, a litigant, now provided with an attorney at public expense to litigant a custody matter, seeks status as a poor person to waive filing fees for various court documents in the ongoing litigation. The father filed a petition to gain additional access to his children, change the primary residence for the children and have the mother pay the father child support. The children have, since the divorce, primarily resided with their mother. The father has been under a child support order, but has never paid child support. In addition, the father has a judgment against him, in favor of the mother, for more than $60,000 resulting from the husband’s default on payments required as part of the equitable distribution in the divorce. In the current application, filed pro se, the father attests that he was about commence a lawsuit for child custody, child support and equitable distribution. The issue of equitable distribution was resolved when the divorce decree was signed and is not before this court. In the application, the husband attests that his sole source of income is $607 that he receives each month from public assistance. The father also attests that he has a residence, which he alleges has a value of $140,000, but he asserts that there is a “equity loan” in the amount of $156,000 on the residence. He concludes that he does not have a bank account, although he provides no information on how obtains his public assistance benefits or, for that matter, how he purchases goods and services. There is no evidence in the application that the father has any disabilities or other limitations. In prior proceedings, the father submitted an affidavit to Supreme Court in May, 2017, when he alleged that he was diagnosed with depression and anxiety and was unable to work. There was no medical evidence of his condition accompanying that affidavit. In March 2017, after the father had filed for a modification of his support obligations before a family court Support Magistrate. The father testified that he had been unemployed for five years and unable to work. The Magistrate, in her findings of fact, concluded: “when asked that nature of his disability, the petitioner [father] stated that he would rather not say as he is not a doctor.” The Magistrate added that the father “did not provide any medical testimony or any information regarding why he cannot work.” The application was dismissed because the father failed to meet his burden of proof. The father also filed repeated actions in family court in 2017. Regardless of these prior filings and judicial conclusions regarding the father’s lack of proof of any disability or his “unemployment,” this court acknowledges that the self-reported facts alleged in the current application, standing alone, indicate the father is, presumably, entitled to a publicly-funded attorney to pursue his custody claims. NY Family Court Act §262 (a) (v).During the divorce proceedings in this matter, the father was represented by two attorneys in his divorce action. Both withdrew prior to trial. The divorce was tried before a court-appointed referee who issued a 47 page decision in August 2015. The judgment of divorce was signed in December, 2015. When the judge who signed the divorce retired, post-judgment enforcement matter arose — the mother was attempting to recover more than $60,000 in unpaid obligations. The case was assigned to another justice in Supreme Court, who, apparently without any investigation or analysis, appointed an attorney, at public expense, to represent the father. Thereafter, when the assigned justice died, the matter was transferred and this court, mindful of its obligations to provide counsel to parents involved in custody matters, appointed an attorney for the father. When that attorney moved to withdraw, the court appointed another attorney who also moved to withdraw in short order. The court appointed a third attorney, who now represents the father. During these determinations, the court accepted, without questioning and in reliance on the determination of the prior Supreme Court justice, that the father was entitled, by virtue of his apparent lack of funds, to appointed counsel under the requirements of the Family Court Act.Importantly, when the couple in this matter had their divorce decided by a referee in this County and when the judgment was signed by a Supreme Court Justice in December, 2015, the referee and the judge imputed $40,000 in income to the father. The father is a graduate of the Rochester Institute of technology. He admitted during his divorce trial to having an earning capacity of $80,000 annually within two years of starting a business. He admitted that he had chosen “not to look for meaningful employment.” The referee held that the father had, on occasion, earned more than $100,000 annually in the years before the divorce and expressed dismay — “appalled” is the word that the referee used — that the father was now spending his time honing his cycling skills rather than working to support his family. The referee said the father was essentially “abdicating his responsibility to support himself and his four young children.” The referee decision and the judgment of divorce are public documents and both documents were presented to this court during the motion practice portion of the pending matter. This court can take judicial notice of these documents. CPLR 4511; In re Anjoulic, 18 AD3d 984 (3rd Dept 2005).Therefore, the question for this court is whether the prior determination made in the divorce decision and judgment in 2015 can now be applied to the father in this case as he seeks poor person status and waiver of the proscribed fees for filing in his current post-judgment application to change custody in his favor.This court, while often considering such applications as a pro forma exercise, now pauses because this application triggers many of the court’s concerns, echoed earlier in Carney v. Carney. In Carney v. Carney, 54 Misc 3d 411 (Sup. Ct. Monroe Cty 2016), this court encountered a litigant, with extensive skills and education, who sought a publicly — finance attorney in a custody contest against his wife. This court, after holding a hearing, imputed income to the parent, holding that he admitted he possessed sufficient skills to justify a significant income and with that income, he could easily afford to retain counsel.The Appellate Division, Fourth Department, reversed this court, holding that this court lacked statutory authority to impute income to the father and he was entitled to a publicly-financed attorney. Carney v. Carney, 160 AD3d 218 (4th Dept 2018). The case was returned to Supreme Court and, under the guidance of another judge, eventually resolved. The Appellate Division decision controls on this court’s ability to impute income to a litigant seeking publicly — financed counsel in a contested custody matter and, in this court’s view, also appears top constitute stare decisis, on the question of whether this litigant can attain poor person status.The differentiating factor, in this instance, is this court need not impute income to the litigant seeking counsel and instead, the issue is whether the prior court imputation of income should impact this court’s determination of whether the litigant qualifies for the appointment of counsel. This court notes that there is no evidence, in the application before the court, that explains how the imputation of income of $40,000 by court order in 2015 is no longer appropriate to this applicant. In this court’s view, many of the public policy arguments, advanced by this court in its decision in Carney v. Carney, are also implicated here. The wife is financing the defense of her custody and care of the children through private means — and given the father’s repeated filings — at significant expense. In addition, the father has appointed counsel and, under the undisputed facts in the pleadings, had several attorneys represent him during the last 18 months, all at public expense. In short, the father, who has never paid child support, has no current employment (even though he earned as much as $100,000 in the years before the divorce), participates in numerous cycling races each year, filed numerous legal actions to change custody and never fulfilled financial obligations under the judgment of divorce now seeks approval from this court to waive filing fees while he continues his challenges to the mother’s custody and primary residence of the children. In short, the usual justification for public — financing of a litigant’s legal rights is turned topsyturvy: the less-income spouse with constitutional rights of access at stake has no skin-in-thegame1 while his wife, struggling to make ends meet with four children and with similar constitutional rights of access at stake, has to finance her defense of the original custody determination by diverting resources otherwise available for the children. This court notes that at one point during the proceedings in this matter, the attorney representing the wife asked the court — in rhetorical frustration — whether the court would appoint her to represent the wife at public expenses to “level the playing field.” The court, acknowledging the “at-wit’s end” frustration of the mother’s attorney, declined to make that move.In its decision in Carney v. Carney, the Fourth Department held that those concerns — practical and real-world concerns for both the court and litigant with her own constitutional and statutory rights forced to finance family law litigation against a litigant with a publicly funded attorney — were without statutory justification and “unsound.” Id. at 227. This court does not object to the Fourth Department rationale or its holding and recognizes that an “evaluation for assigned counsel requires a determination whether a party has presently available financial resources to pay an attorney to fulfill the immediate need for representation.” Id. However, in this instance, a talented father with a prior history of substantial income, but unmistakable and long-judicially chronicled deliberate — the referee described it as “appalling” — post-divorce indifference to his family obligations, obtains a valuable benefit of an accomplished attorney to prosecute his claims. This court has repeatedly appointed counsel for indigent litigants, who are without educational attainment, disabled, chronically ill, lack language proficiency, suffer addictions or other ailments, have mental health complications or lack insight into the complexities of the matrimonial process. A calculated, deliberate and consistent indifference to family obligations and a refusal to work to support a family should not qualify as a criteria for such a benefit.As an alternative to imputing income to a litigant when considering an application based on indigence, the Fourth Department suggested sanctions could be applied if the court considered a litigant’s actions frivolous. 22 NYCRR 130-1.1 The financial sanctions route seems fruitless in this case in which the litigant, with a public-financed attorney, already owes his ex-wife more than $60,000 and has never paid child support. After-the-fact financial sanctions are meaningless here. In addition, as this court noted in its opinion in Carney v. Carney, the resort to the option of an after-the-fact payment from the father under County Law §722-d — also suggested by the Appellate Division — is seldom effective anywhere.2 In this instance, the resort to County Law §722-d is pointless as any judgment for the minimal filing fees sought in this application will take its place behind the $60,000 uncollectible judgment already granted in favor of the wife and the outstanding debt for unpaid child support.This court notes that there is no readily available procedure for court review of poor person applications. If the court does not accept the representations in the application, then the only alternative is to hold a hearing, which simply adds expense to the mother and seems an illogical use of public funds when the applicant simply seeks to waive filing fees. As the court’s prior experience demonstrated, there is no attorney present in the case to question the indigent’s persons representations — the cost to the mother in having her counsel conduct the inquiry makes it quixotic. The court cannot — and should not — conduct the inquiry and quiz the applicant because, in agreement with the Fourth Department, even questioning an indigent’s application can be perceived as indicative of bias and require recusal or disqualification by the court.This court is bound by the appellate decision in Carney v. Carney. It cannot impute income to this litigant, even though the Supreme Court had previously imputed $40,000 to him during the divorce action — even when he bragged he could earn twice that amount in his own business within two years — and there is no evidence that finding is no longer valid. This court is also without the power to even require the father to pay the minimal filing fees required to continue this action, even though such modest fees would seemingly only require he sequester some minor portion of his monthly income. In accordance with Carney v. Carney, 160 AD3d 218 (4th Dept 2018), this court grants poor person status to the father pursuant to CPLR 1101.Dated: April 22, 2019
