Opinion
05-08-2015
In the Matter of a Family Offense Proceeding under article 8 of the Family Court Act ANITA C., Petitioner, Johana S., Respondent.
Jeffrey Guerra, Hempstead, for Anita C. Barbara M. Lew, Forest Hills, for Johana S.
Jeffrey Guerra, Hempstead, for Anita C. Barbara M. Lew, Forest Hills, for Johana S.
JOHN M. HUNT, J. By petition filed pursuant to Family Court Act § 821 on October 22, 2015, the petitioner, Anita C., alleges that the respondent, Johana S., has committed one or more of the family offenses designated by Family Court Act § 812(1), and she requests that this Court issue an order of protection against the respondent ( Fam. Ct. Act §§ 841[d] ; 842).
The petition alleges that Anita C. is "the aunt (by marriage) of the respondent", that the parties reside in different apartments in the same building in College Point, that respondent "threatened me with foul words", that respondent "insulted" the petitioner's daughter, that respondent "parks the car in the backyard which she is not supposed to do ... I told her to please take the car out, and she began to threaten and insult me with foul words." In addition, the petition alleges that respondent "harasses and intimidates my daughter with gestures", and that respondent "hit me on my waist with [a] door" on September 9, 2014 and that she "honked" her car horn "hard" and scared her children in April of 2011.
Although it was unclear to the Court whether the petition sufficiently alleges any of the designated family offense acts, in the absence of a motion to dismiss the petition pursuant to Civil Practice Law and Rules § 3211(a)(7) (see, Matter of Pamela N. v. Neil N., 93 A.D.3d 1107, 1108, 941 N.Y.S.2d 751 [2012] ; Matter of Clark v. Ormiston, 101 A.D.3d 870, 871, 954 N.Y.S.2d 903 [2012] ; Matter of Jeff M. v. Christine N., 101 A.D.3d 1426, 1427, 957 N.Y.S.2d 758 [2012] ; Matter of Smith v. Howard, 113 A.D.3d 781, 978 N.Y.S.2d 856 [2014] ; Matter of Xin Li v. Ramos, 125 A.D.3d 681, 682, 3 N.Y.S.3d 86 [2015] ), a fact-finding hearing was commenced in accordance with Family Court Act § 832.
Petitioner testified that she and the respondent "are related". When questioned about the nature of this relationship, petitioner testified that respondent is "married to Raul who is petitioner's husband's half-sister's son." When the Court questioned petitioner in an attempt to clarify her testimony, it became apparent that the petitioner did not know the name of Raul's mother, the half-sister of her husband. Petitioner further conceded that she and the respondent have no personal relationship, although they reside in the same apartment building.
Family Court Act § 115(e) and § 812(1) provide that the Family Court and the criminal courts have concurrent jurisdiction "for certain enumerated criminal offenses when committed by one family member against another" ( People v. Wood, 95 N.Y.2d 509, 512, 719 N.Y.S.2d 639, 742 N.E.2d 114 [2000] ; see also, Matter of Alfeo v. Alfeo, 306 A.D.2d 471, 761 N.Y.S.2d 505 [2003] ; Matter of Richardson v. Richardson, 80 A.D.3d 32, 36–37, 910 N.Y.S.2d 149 [2010] ), and the court is vested with jurisdiction over family offenses occurring "between spouses or former spouses, or between parent and child or between members of the same family or household" ( Fam. Ct. Act § 812[1] ; see, Matter of Hon v. Tin Yat Chin, 117 A.D.3d 946, 947, 985 N.Y.S.2d 904 [2014] ; Matter of Arnold v. Arnold, 119 A.D.3d 938, 938–939, 989 N.Y.S.2d 879 [2014] ; Matter of Johnson v. Carter, 122 A.D.3d 853, 853–854, 996 N.Y.S.2d 658 [2014] ).
The statute further defines "members of the same family or household" as: "(a) persons related by consanguinity or affinity; (b) persons legally married to each other; (c) persons formerly married to one another regardless of whether they still reside in the same household; (d) persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and (e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" ( Fam. Ct. Act § 812[1] ; see, Matter of Jose M. v. Angel V., 99 A.D.3d 243, 246–247, 951 N.Y.S.2d 195 [2012] ; Matter of Winston v. Edwards–Clarke, 127 A.D.3d 771, 771–772, 6 N.Y.S.3d 566 [2015] ).
In this case, petitioner does not assert that she and the respondent have an "intimate relationship" as that term is defined by the statute. Petitioner asserts that the Family Court has jurisdiction because she is "related" to the respondent through her marriage, in other words, that she and the respondent are related by affinity, which is "a connection formed by marriage" ( Kelly v. Neely, 12 Ark. 657 [Sup.Ct.1852] ; see also, Matter of Bibeau v. Ackey, 56 A.D.3d 971, 972, 869 N.Y.S.2d 244 [2008] ; Matter of Anstey v. Palmatier, 23 A.D.3d 780, 803 N.Y.S.2d 767 [2005] ).
"Affinity properly means the tie which arises, from marriage, betwixt the husband and the blood relatives of the wife, and between the husband and the blood relatives of the husband. And the blood relatives of the wife, while the marriage continues, stand in the same degree of affinity to the husband as they do in consanguinity to her" ( Paddock v. Wells, 2 Barb. Ch. 331 [1847] ; see also, Higbe v. Leonard, 1 Denio 186, 187 [1845] ; Anstey, 23 A.D.3d at 780, 803 N.Y.S.2d 767 ; Weisinger v. Van Rensselaer, 79 Misc.2d 1023, 1024, 362 N.Y.S.2d 126 [1974] ).
"Affinity is an artificial relationship" ( Tegarden v. Phillips, 14 Ind.App. 27, 42 N.E. 549, 551 [1895] ), and it "is the tie which exists between one of the spouses with the kindred of the other" (id. ), but the "relationship by affinity always depends upon the blood of the two spouses, and cannot extend beyond such blood kindred " (id. [emphasis added] ). Thus, the Tegarden court explained, affinity "exclude[s] the affinity relatives of the respective spouses. My wife's brother's wife is related to my wife by affinity, because of the blood relationship existing between my wife and her brother; but she is not related to me by affinity, because there is no blood in common between us. In other words, the affinity relatives of my wife are not my affinity relatives, nor vice versa" (id. [emphasis added], citing Higbe v. Leonard, 1 Denio 186 ; see, White v. State, 756 N.E.2d 1057, 1060–1061 [Ind.App.2001] ), thus "an affine of one spouse is not related to an affine of the other spouse" ( Criminal Injuries Comp. Board v. Remson, 282 Md. 168, 184, 384 A.2d 58, 67 [Ct.App.1978] ; see also, Clawson v. Ellis, 286 Ill. 81, 82, 121 N.E. 242, 243 [Sup.Ct.1918] ; Calloway v. Allstate Insurance Co., 138 Ill.App.3d 545, 548, 485 N.E.2d 1242, 1244, 93 Ill.Dec. 32, [Ct.App.1985] ; Smith v. Associated Natural Gas Company, 7 S.W.3d 530, 535 [Mo.App.1999] ).
Here the parties agree that respondent, Johana S., is married to "Raul" who is the son of the half-sister of petitioner's husband. It would appear then that the petitioner is the sister-in-law of her husband's half-sister by virtue of her marriage, and consequently that she is the paternal aunt (by marriage or affinity) of "Raul", the son of her husband's half-sister, as petitioner stands in the same degree of affinity as her husband stands by consanguinity to her husband's blood relatives. However, because a relationship of affinity does not extend to the spouses of affines, it is clear that respondent has no relationship of affinity to the wife of her husband's uncle, and vice versa. "The word ‘kin’ is sometimes used in a general sense to include relationship by blood or marriage" ( State v. Hooper, 140 Kan. 481, 37 P.2d 52, 64 [Sup.Ct.1934] ). While the petitioner may believe that all persons married to members of her family, including people married to someone to whom she is only related to by affinity, are her kin or relations, this is an overly broad definition of those affinity relationships which are recognized by law.
"It is sometimes said that there is a connection between parties, arising from marriage, which is neither consanguinity nor affinity. It is called affinitas affinitatis' [and] sometimes confused with and called affinity" ( Tegarden, 42 N.E. at 551 ). Although petitioner apparently believes that she and Johana are "related" because they are both married to members of the same family who share a common ancestor and are related by consanguinity, in actuality these parties are not related at all. Moreover, the fact that petitioner testified that she and respondent have no personal relationship with each other illustrates that their "connection is too vague and shadowy for judicial cognizance" ( Tegarden, 42 N.E. at 551 ).
Subject matter jurisdiction is a nonwaivable issue that is not subject to preservation requirements ( Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., 21 N.Y.3d 200, 203, 969 N.Y.S.2d 424, 991 N.E.2d 198 [2013] ; Matter of Scott KK. v. Patricia LL., 110 A.D.3d 1260, 1261–1262, 974 N.Y.S.2d 152 [2012], lv. dismissed and denied 22 N.Y.3d 1054, 981 N.Y.S.2d 360, 4 N.E.3d 372 [2014] ; Matter of Samantha I. v. Luis J., 122 A.D.3d 1090, 1090–1091, 997 N.Y.S.2d 510 [2014] ). The absence of subject matter jurisdiction may be raised by the parties or upon the court's own motion at any time ( Financial Industry Regulatory Authority v. Fiero, 10 N.Y.3d 12, 17, 853 N.Y.S.2d 267, 882 N.E.2d 879 [2008] ; Gonzalez v. Thaler, –––U.S. ––––, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 [2012] ).
In this case the Court concludes as a matter of law and fact that parties are not "members of the same family or household". Accordingly, the Family Court has no subject matter jurisdiction over this proceeding, and the petition must be dismissed ( Anstey, 23 A.D.3d at 781, 803 N.Y.S.2d 767 ; Matter of Seye v. Lamar, 72 A.D.3d 975, 977, 900 N.Y.S.2d 112 [2010] ; Matter of Tyrone T. v. Katherine M., 78 A.D.3d 545, 911 N.Y.S.2d 56 [2010] ; Matter of Riedel v. Vasquez, 88 A.D.3d 725, 727, 930 N.Y.S.2d 238 [2011] ; Matter of Welch v. Lyman, 100 A.D.3d 642, 644, 953 N.Y.S.2d 643 [2012] ; Johnson, 122 A.D.3d at 854, 996 N.Y.S.2d 658 ).
This constitutes the order of the Court.