Opinion
2013-06-5
In the Matter of Donna A. GOULD, respondent, v. John GOULD, appellant.
Steven Greenfield, West Hampton Dunes, N.Y., for appellant. Heidi Luna, Jamaica, N.Y., for respondent.
Steven Greenfield, West Hampton Dunes, N.Y., for appellant. Heidi Luna, Jamaica, N.Y., for respondent.
Cabelly & Calderon, Jamaica, N.Y. (Alan S. Cabelly of counsel), attorney for the child.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, John Gould appeals (1) from an order of protection of the Family Court, Queens County (Lebwohl, J.), dated May 24, 2012, which directed him, inter alia, to stay away from Donna A. Gould and John Gould, Jr., until and including May 24, 2014, and (2) from an amended order of fact-finding and disposition of the same court dated October 26, 2012, which, after a hearing, inter alia, found that he had committed the family offense of harassment in the second degree.
ORDERED that the order of protection dated May 24, 2012, is reversed, on the facts; and it is further,
ORDERED that the amended order of fact-finding and disposition dated October 26, 2012, is reversed, on the facts, the petition is denied, and the proceeding is dismissed; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
“ ‘The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record’ ” ( Matter of Salazar v. Melendez, 97 A.D.3d 754, 755, 948 N.Y.S.2d 673, quoting Matter of Richardson v. Richardson, 80 A.D.3d 32, 43–44, 910 N.Y.S.2d 149). At a fact-finding hearing pursuant to Family Court Act article 8, the petitioner has the burden of establishing the allegations contained in the petition by a “fair preponderance of the evidence” (Family Ct. Act § 832; see Matter of Foxworth v. DeJesus, 74 A.D.3d 1064, 903 N.Y.S.2d 114).
The petitioner did not establish by a fair preponderance of the evidence that the appellant's act of directing his attorney to ask the petitioner's attorney for a key to the marital residence, currently occupied by the petitioner, constituted harassment in the second degree ( seeFamily Ct. Act § 812[1]; Penal Law § 240.26[3] ).
Since the record does not support the Family Court's determination that the appellant committed a family offense, the order of protection must be reversed, the amended order of fact-finding and disposition must be reversed, the petition must be denied, and the proceeding must be dismissed ( see Matter of Testa v. Strickland, 99 A.D.3d 917, 917–918, 951 N.Y.S.2d 910).