Rosecrans v. Rosecrans , 738 N.Y.S.2d 921 ( 2002 )

Appeal from an order of Family Court, Monroe County (Miles, J.H.O.), entered November 6, 2000, which, inter alia, awarded custody of the parties’ children to petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following Memorandum: Respondent appeals from an order awarding custody of the parties’ children to petitioner and supervised visitation to respondent following a trial at which respondent failed to appear. In addition, the Judicial Hearing Officer (JHO) sua sponte discharged respondent’s attorney. Because respondent’s attorney appeared on the day of the scheduled trial and objected to the default determination, the order was not one entered upon respondent’s default, and thus this appeal is properly before us (see, Matter of Williams v Lewis, 269 AD2d 841). Respondent contends that the JHO exceeded his statutory authority by ordering a change in custody “without first obtaining a stipulation of the parties to have the JHO hear all the issues.” Contrary to respondent’s contention, the record establishes that the parties stipulated and consented to have the JHO “hear and determine” the amended petition, which sought a change in custody, and thus the JHO did not exceed his statutory authority (see, CPLR 4301, 4317 [a]).

We agree with respondent, however, that the JHO erred in sua sponte discharging her attorney. Had he not been discharged prior to the commencement of the trial, respondent’s attorney could have cross-examined petitioner and objected to petitioner’s proof. Consequently, we reverse the order and remit the matter to Family Court, Monroe County, for the assignment of counsel and further proceedings on the amended petition. The temporary award of custody to petitioner will remain in effect pending the outcome of the proceedings. Present — Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Lawton, JJ.