Opinion
2021–07126 (Docket No. O–2840–20/21A)
10-05-2022
In the Matter of Kristen SICINA, respondent, v. Otto GORISH, appellant.
Sonnenfeld & Richman, LLP, New York, NY (Judith R. Richman of counsel), for appellant. Rametta & Rametta, LLC, Goshen, NY (Robert M. Rametta of counsel), for respondent.
Sonnenfeld & Richman, LLP, New York, NY (Judith R. Richman of counsel), for appellant.
Rametta & Rametta, LLC, Goshen, NY (Robert M. Rametta of counsel), for respondent.
ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, Otto Gorish appeals from an order of the Family Court, Orange County (Victoria B. Campbell, J.), dated September 7, 2021. The order, insofar as appealed from, after a hearing, granted the petition alleging that Otto Gorish willfully violated an order of protection previously issued on October 15, 2020, extended the order of protection until September 7, 2023, and directed Otto Gorish to pay counsel fees in the sum of $1,000 to the petitioner.
ORDERED that the order is modified, on the law, by deleting the provision thereof directing Otto Gorish to pay counsel fees in the sum of $1,000 to the petitioner; as so modified, the order is affirmed insofar as appealed from, with costs to the petitioner, and the matter is remitted to the Family Court, Orange County, for further proceedings consistent herewith.
On August 21, 2020, the petitioner filed a family offense petition pursuant to Family Court Act article 8, alleging that her ex-boyfriend, Otto Gorish, committed the family offenses of harassment in the second degree, aggravated harassment in the second degree, and forcible touching. On October 15, 2020, the Family Court entered an order of protection directing Gorish to, inter alia, stay away from the petitioner's home by 1,000 feet. On February 23, 2021, the petitioner filed a petition alleging that Gorish violated the order of protection. The Family Court conducted a hearing at which the petitioner presented, among other things, evidence that Gorish was within 1,000 feet of the petitioner's home with a friend on November 5, 2020, and with Gorish's son and nephew on November 10, 2020. In an order dated September 7, 2021, the Family Court, inter alia, found that Gorish had willfully violated the order of protection and granted the violation petition in its entirety. The court also extended the order of protection until September 7, 2023, and directed Gorish to pay counsel fees to the petitioner in the sum of $1,000. Gorish appeals.
"To establish a willful violation of a Family Court order, the petitioner has the burden of proving his or her case by clear and convincing evidence" ( Matter of Quattrochi v. Negri, 187 A.D.3d 921, 922, 130 N.Y.S.3d 366 [internal quotation marks omitted]; see Matter of Savas v. Bruen, 139 A.D.3d 737, 739, 31 N.Y.S.3d 149 ). "The determination as to whether a violation of a lawful order has been committed is a factual issue to be resolved by the hearing court, whose determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record" ( Matter of Lashlee v. Lashlee, 161 A.D.3d 866, 867, 73 N.Y.S.3d 438 ; see Matter of Jacobs v. Jacobs, 167 A.D.3d 890, 891, 90 N.Y.S.3d 131 ). Here, the Family Court's determination that Gorish willfully violated the order of protection was supported by clear and convincing evidence in the record.
Family Court Act § 846–a authorizes the court to enter a new order of protection "if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order" (see Matter of Lisa T. v. King E.T., 30 N.Y.3d 548, 553, 69 N.Y.S.3d 236, 91 N.E.3d 1215 ). Contrary to Gorish's contention, "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" ( Matter of Lisa T. v. King E.T., 30 N.Y.3d at 553, 91 N.E.3d 1215 ; see Matter of Solomon v. Fishman, 162 A.D.3d 1051, 1052, 80 N.Y.S.3d 134 ; Matter of Santiago v. Santiago, 158 A.D.3d 772, 773, 68 N.Y.S.3d 763 ).
Under Family Court Act § 846–a, the court "may order the respondent to pay the petitioner's reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful." "The award of counsel fees is committed to the discretion of the Family Court" ( Matter of Christy v. Christy, 182 A.D.3d 596, 596, 120 N.Y.S.3d 805 ; see Matter of Savas v. Bruen, 139 A.D.3d at 739, 31 N.Y.S.3d 149 ). "[T]he reasonable amount and nature of the claimed services must be established at an adversarial hearing" ( Matter of Rogers v. Rogers, 161 A.D.2d 766, 767, 556 N.Y.S.2d 114 ; see Price v. Price, 115 A.D.2d 530, 496 N.Y.S.2d 464 ). Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. Accordingly, we remit the matter to the Family Court, Orange County, for a hearing to determine the amount of reasonable and necessary counsel fees the petitioner incurred in connection with her violation petition and the entry of an appropriate order thereafter.
Gorish's remaining contentions either need not be reached in light of our determination or are without merit.
IANNACCI, J.P., RIVERA, ZAYAS and DOWLING, JJ., concur.