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In re Lisa T.

Supreme Court of New York, First Department

February 28, 2017

In re Lisa T., Petitioner-Respondent,
v.
King E.T., Respondent-Appellant.

          Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.

          Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for respondent.

          Acosta, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.

         Order, Family Court, Bronx County (John J. Kelley, J.), entered on or about June 30, 2015, which, inter alia, found that respondent willfully violated two temporary orders of protection, unanimously affirmed, without costs. Order, same court and Judge, entered on or about July 8, 2015, which issued a one-year order of protection against respondent, affirmed, without costs.

         Respondent was on notice of the conduct prohibited under the October 3, 2013 order of protection, with which he was served in court. Despite his nonappearance in court on November 20, 2013, the prominent warning on the face of the October 3, 2013 order put respondent on fair notice that the order would be extended (see People v Hopkins, 275 A.D.2d 667');">275 A.D.2d 667 [1st Dept 2000], lv denied 95 N.Y.2d 935');">95 N.Y.2d 935 [2000]).

         Respondent's April 3, 2014 email contained statements clearly intended to harass petitioner, in violation of the order of protection that was entered that same day (see Matter of Jaynie S. v Gaetano D., 134 A.D.3d 473, 474 [1st Dept 2015], lv denied 26 N.Y.3d 917');">26 N.Y.3d 917 [2016]; Matter of Angela C. v Harris K., 102 A.D.3d 588, 589 [1st Dept 2013]).

         Respondent's appeal from the July 8, 2015 order of protection has not been rendered moot solely by the expiration of that order. As the Court of Appeals held in Matter of Veronica P. v Radcliff A. (24 N.Y.3d 668, 671 [2015]), the "expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision."

         Because the appeal has not been rendered moot, we must consider the merits of the order of protection, and we now find that it was properly issued. Family Court Act § 846-a, "Powers on failure to obey order, " is "punitive [in] nature"; it prescribes the procedure and penalties for failing to obey a temporary order of protection (see Matter of Walker v Walker, 86 N.Y.2d 624, 629 [1995]). Specifically, the court is permitted to issue a new order of protection if the respondent is "brought before the court for failure to obey [a]... temporary order of protection issued pursuant to this act... and if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey... such order." Under Family Court Act § 846-a the new order of protection must be in accordance with Family Court Act § 842, which permits a court to issue such an order upon a finding "on the record that the conduct alleged in the petition is in violation of a valid order of protection."

         Here, the Family Court found, on the record after a hearing, that respondent had willfully violated the temporary order of protection with his April 3, 2014 emails containing statements clearly intended to harass petitioner. As a result of this determination, the Family Court conducted a dispositional hearing on respondent's violation of the temporary order of protection, and thereafter issued a new order of protection. The Family Court adhered to the prescribed procedure and did not exceed its jurisdiction by issuing this final order of protection. [1]

         Our dissenting colleague contends that Family Court Act § 846-a must be read to provide that a "final" order of protection can only be issued upon the Family Court's determination that: (1) the respondent willfully violated a final order of protection that itself was issued upon a finding that a family offense was committed; or (2) the respondent's violation of a temporary order of protection constituted a family offense; or (3) the respondent's violation of a final order of protection constituted a family offense. There is no support in the statute or in the case law for this proposition. The dissent's argument would require this Court to read language into the statute that is, simply, not there. Family Court Act § 846-a does not require a finding of the commission of a family offense.

         The dissent's reliance on Family Court Act § 812 is misplaced, since that section addresses concurrent jurisdiction between the Family Court and Criminal Court. Family Court Act § 841 - "Orders of disposition" - also does not save the dissent's argument, as that section provides that the court may, upon a determination that no family offense has been committed, dismiss the petition. Moreover, as previously stated, we read Family Court Act § 846-a as prescribing the remedies available to the court when a respondent violates a temporary order of protection, which is what is at issue here.

         The case of Matter of V.C. v H.C. (257 A.D.2d 27');">257 A.D.2d 27 [1st Dept 1999]), cited by our dissenting colleague, is inapposite and simply details the steps a court should take when a family offense is found to have been committed; it does not dictate that the finding of a family offense must exist before an order of protection can be issued. Moreover, the court in Matter of V.C. did not address Family Court Act § 846-a. Matter of Mary C. v Anthony C. (61 A.D.3d 682 [2nd Dept 2009]) and Matter of Steinhilper v Decker (35 A.D.3d 1101');">35 A.D.3d 1101 [3rd Dept 2006]) also do not dictate that a finding that the respondent committed a family offense must exist in order for the court to issue an order of protection. Rather, in both cases, the courts focused on the allegations in the petitions and the fact that the alleged acts did not constitute acts specifically enumerated in Family Court Act § 812, and thus concluded that they lacked subject matter jurisdiction over the family offense proceedings and dismissed the petitions. Such is not the case here, where the petition before the court alleged acts that are specifically enumerated in Family Court Act § 812.

         We have considered respondent's remaining contentions and ...


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