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In re Lisa T.

New York Court of Appeals

December 19, 2017

In the Matter of Lisa T., Respondent,
v.
King E. T., Appellant.

          Richard L. Herzfeld, for appellant.

          Randall S. Carmel, for respondent.

          OPINION

          STEIN, J.

         Petitioner Lisa T. filed a family offense petition against respondent King E.T., who is her husband and the father of her child. Petitioner requested and received a temporary order of protection, ex parte, at her first appearance in Family Court. The temporary order of protection directed respondent to refrain from all communications with petitioner except those relating to visitation arrangements and emergencies regarding the child. It is undisputed that respondent was served with, and had knowledge of, this order. Throughout a series of subsequent court appearances concerning the family offense petition - at which respondent was present with one exception - the temporary order of protection was extended. While the family offense proceeding remained pending, petitioner filed two violation petitions, later consolidated into a single petition, alleging that respondent had contacted her in contravention of the temporary orders of protection.

         Family Court held a combined hearing on the family offense and consolidated violation petitions. As relevant here, Family Court determined that petitioner had presented insufficient evidence to sustain the family offense petition, but that she had proven respondent's willful violations of two temporary orders through email communications unrelated to the child's visitation or any emergency. Accordingly, Family Court dismissed the family offense petition, but sustained the violation petition and issued a one-year final order of protection precluding respondent from, among other things, communicating with petitioner except as necessary to make arrangements for respondent's visitation with the child.

         Upon respondent's appeal, the Appellate Division affirmed, with one justice dissenting (147 A.D.3d 670');">147 A.D.3d 670 [1st Dept 2017]). The dissenting justice would have held that Family Court lacked jurisdiction to issue a final order of protection because the family offense petition had been dismissed (147 A.D.3d at 675). Thereafter, the Appellate Division certified to this Court the question of whether its order was properly made.

         Respondent first argues that Family Court lacked jurisdiction to enter a final order of protection upon its finding that he violated the temporary orders of protection, absent a determination that either the conduct alleged in the original family offense petition or the conduct that comprised the violation of the temporary orders of protection constituted the commission of a family offense. We reject respondent's proposed limitation on Family Court's jurisdiction, inasmuch as it contradicts the plain language of the relevant Family Court Act provisions.

         It is well established that "Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute" (Matter of H.M. v E.T., 14 N.Y.3d 521, 526 [2010]; see Matter of Johna M.S. v Russell E.S., 10 N.Y.3d 364, 366 [2008]). In accordance with the Constitution (NY Const art VI, § 13), the Family Court Act provides that court with concurrent jurisdiction (shared with the criminal courts) over "family offenses" (Family Court Act § 812 [1]). The statutory procedures concerning family offenses are set forth in article 8 of the Family Court Act, and section 812 enumerates the crimes which, if committed between persons in specified relationships, constitute family offenses (see id.). A family offense proceeding is commenced by the filing of a petition alleging the commission of a family offense between parties with the requisite familial relationship, and the petition typically seeks an order of protection (see id. § 821). We have explained that "[t]he purpose of [article 8 is] to remove in the first instance from the criminal courts a limited class of offenses arising in the family milieu, in order to permit a more ameliorative and mediative role by the Family Court" (People v Williams, 24 N.Y.2d 274, 278 [1969]).

         Upon the filing of a family offense petition, the court may, for good cause shown, issue a temporary order of protection in favor of the petitioner and against the respondent (see Family Court Act §§ 821-a [2] [b]; 828). A temporary order of protection "is not a finding of wrongdoing" (id. § 828 [2]). Nevertheless, it is an order of the court and, pursuant to Family Court Act § 846, in the event of a violation, a new petition may be filed alleging "that the respondent has failed to obey a lawful order" of the court. Family Court may hear the violation petition itself and either "take such action as is authorized under this article[, ]... [or] determine whether such violation constitutes contempt of court, and transfer the allegations of criminal conduct constituting such violation to the district attorney for prosecution...; or... transfer the entire proceeding to the criminal court" (id. § 846 [b] [ii] [A]-[C]). When Family Court retains jurisdiction over a violation petition, section 846-a - entitled "Powers on failure to obey order" - sets forth the dispositions available to the court upon a finding of a willful violation. Specifically, "[i]f a respondent is brought before the court for failure to obey any lawful order issued under this article or an order of protection or temporary order of protection issued pursuant to this act, " and it is proven that the respondent willfully violated such an order, the court may, among other things, "modify an existing order or temporary order of protection to add reasonable conditions of behavior to the existing order, make a new order of protection in accordance with section [842] of this part, ... [or] may commit the respondent to jail for a term not to exceed six months" (id. § 846-a [emphasis added]).

         It is fundamental that, because "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583 [1998]; see People v Golo, 26 N.Y.3d 358, 361 [2015]). Family Court Act §§ 846 and 846-a unequivocally grant Family Court jurisdiction and authority to prosecute contempt of its orders, including temporary orders of protection (see People v Wood, 95 N.Y.2d 509, 514 [2000]). Further, the statutory text explicitly authorizes the court to enter a new order of protection if a respondent is found to have willfully violated a temporary order of protection (see Family Court Act § 846-a).

         Nevertheless, respondent argues, and the dissent agrees, that the court's authority to enter a new order of protection under Family Court Act § 846-a upon the violation of a temporary order of protection may not be exercised where the original family offense petition has been dismissed and the conduct underlying the violation does not constitute a family offense. Respondent maintains that dismissal of the family offense petition deprives the court of further jurisdiction. We disagree. While section 812 provides Family Court with concurrent jurisdiction over only specified family offenses, and the violation of a temporary order of protection does not necessarily involve a family offense, section 115 (c) of the Family Court Act states that the "[t]he family court has such other jurisdiction as is provided by law." The plain language of sections 846 and 846-a supply the essential statutory jurisdiction here.

         Family Court Act §§ 846 and 846-a contain no language tying Family Court's authority to impose specific penalties for the willful violation of a temporary order of protection to the court's determination of whether or not the family offense petition, itself, should be sustained (see generally People v Finnegan, 85 N.Y.2d 53, 58 [1995] [courts should not read words into a statute and "courts are not to legislate under the guise of interpretation"]; McKinney's Cons Laws of NY, Book 1, Statutes § 74). Significantly, there is no basis in the statutory text upon which we may draw any distinction between Family Court's jurisdiction over violations of final orders of protection entered after a finding of a family offense, on the one hand, and violations of temporary orders of protection entered during the pendency of the family offense proceeding, on the other. Further, the statutory scheme makes clear that conduct constituting a violation of the order of protection need not necessarily constitute a separate family offense in order for the court to have jurisdiction over the violation. Indeed, section 846-a contains no such requirement.

         The dissent contends that the reference in Family Court Act § 846-a to section 842 - which, in turn, references section 841 - implicitly incorporates a limitation that a final order of protection may be entered only after a finding that a family offense was committed (see dissenting op., at 7). Section 842 sets forth the terms, conditions, and durations, of orders of protection entered pursuant to article 8. Notably, while section 842 references orders issued pursuant to section 841 - which governs the disposition of family offense petitions - section 846-a does not contain any such reference to section 841. Thus, on its face, section 846-a incorporates only that which is set forth in section 842 with regard to the terms and conditions of the order of protection entered upon a finding of a violation. This is evidenced by the fact that section 846-a expressly includes violations of temporary orders without drawing any distinction between temporary and final orders; the inclusion of temporary orders would be nonsensical if section 846-a applied only to those orders of protection entered upon a disposition under section 841 (see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 [2001] ["meaning and effect should be given to every word of a statute"]). Contrary to the dissent's assertion, our reading gives effect to, and does not render superfluous, the reference to Family Court Act § 842 found in section 846-a, whereas the dissent's reading strains the plain language of that statutory provision. [1]

         To be sure, where the court concludes that the allegations of the petition charging respondent with a family offense are not established, it must dismiss the family offense petition (see Family Court Act § 841 [a]). However, this does not compel the conclusion that a pending petition alleging the violation of a temporary order of protection must also be dismissed. As noted, the family offense and violation petitions are authorized by different statutory provisions (see id. §§ 821, 846, 846-a). Once Family Court obtains jurisdiction over the parties by virtue of a petition facially alleging a family offense, the court may issue a temporary order of protection (see Family Court Act ยงยง 821-a [2] [a]; 828). A ...


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