Opinion
X-XXXXX-XX
01-28-2015
In the Matter of P.A.E., Petitioner, v. S.E., Respondent.
The petitioner filed a family offense petition against his daughter on June 30, 2014. Having found that the petitioner had sufficient assets to enable him to retain legal counsel, the Court granted him three adjournments for this purpose. The petitioner appeared for trial on January 8, 2014 and requested a further adjournment to hire an attorney specializing in housing court matters. The respondent opposed this application, as she had been present at all prior court appearances, which were adjourned at the petitioner's request, and the adjournments were causing her to miss work. The Court conditioned this further adjournment on the petitioner's reimbursing the respondent for her lost wages. Because the petitioner refused, the trial proceeded.
The petitioner insisted on being assigned counsel free of charge; however, amongst his assets was a multi-family home, unencumbered by debt. As such, he was not eligible for counsel at public expense. On numerous occasions, the Court advised the petitioner of the perils of proceeding without counsel; however, the respondent refused to hire counsel. --------
The evidence presented at trial revealed that the petitioner resides in the multi-family home that he owns in Bronx County. Several other family members, including the respondent and the petitioner's sisters, reside in separate apartments in that home. Other non-relatives also reside at the premises, including the petitioner's ex-wife and the respondent's partner.
By enacting Family Court Act ("FCA") Article 8, the Legislature provided families with an alternative forum to seek redress for, and protection from, what otherwise would be criminal conduct. No longer would family members have to weigh the cost of subjecting a loved-one to the criminal justice system and a potential criminal record. Instead, the family court—the court best suited to address family problems—would preside over offenses that potentially could result in criminal convictions. (See Matter of Rollerson v. New, 28 Misc 3d 663, 665 [Fam. Ct. Kings Co. 2010]; Matter of Eileen W. v. Mario A., 169 Misc 2d 484, 486-87 [Fam. Ct. NY Co. 1996]).
The family court, however, is a court of limited jurisdiction, only possessing powers specifically granted by law. To obtain relief under FCA Article 8, a petitioner must prove that an offending party committed a family offense, consisting of one of the penal law violations enumerated in FCA § 812(1). Put another way, a petitioner is required to prove, by a preponderance of the credible evidence, that a respondent committed a crime. Lesser conduct, consisting of petty occurrences and impoliteness that does not require judicial intervention, does not constitute a family offense as defined by the FCA. (Eileen W., 169 Misc 2d at 488).
At trial, the petitioner alleged that the respondent: took the Plexiglas off of the front screen door; tried to break into the basement; flooded the basement by clogging a toilet; allowed her dog to defecate on the lawn; tried to hit him; broke his mailbox, but told police that he broke it; and cursed at him. Except as noted below, the petitioner did not witness the respondent commit the above acts, nor did he call any other witnesses or submit supporting evidence. In some instances, the petitioner alleged that the respondent admitted engaging in certain conduct to him—an allegation that the respondent denies. The Court does not find the petitioner to be a credible witness and resolves all disputed facts in favor of the respondent.
Furthermore, most of the allegations in this proceeding do not amount to a cognizable family offense. Even if the respondent had removed the Plexiglas from the front screen door, the petitioner admitted that the Plexiglas was not broken, which, based upon the credible testimony of the respondent that the door's Plexiglas was loose and falling off, does not constitute a family offense. Nonetheless, the Court finds that the respondent credibly testified that she did not remove the Plexiglas from the door.
The Court also finds the respondent's testimony credible to the extent that she did not try to break into the basement, that she did not damage the lock on the door, and that she did not flood the basement. Again, the petitioner admitted that the basement had always been a dedicated family area for use by all family members. At some point, the petitioner installed a lock to exclude everyone except himself from the basement, and he refused to give a key to the respondent. Based on the petitioner's testimony alone, no family offense was committed. The respondent unsuccessfully attempted to get into the basement with a screwdriver, at worst causing only a few scratches on a padlock. Present access to the basement appears to be in dispute, with at least one side engaging a lawyer regarding this matter. Because the respondent was not able to gain entry into the basement, it is hard to imagine how she could have caused flooding; however, even if the respondent did enter the basement, based upon the credible testimony and evidence presented, the Court does not find that she damaged any property.
The petitioner also introduced several photographs of the respondent and her partner walking one or more dogs. He alleged that they did not clean up after the dogs. The respondent testified that the dog leash is equipped with a bag dispenser that she uses to remove the dogs' waste. Regardless, violations of the New York City Sanitary Code are not enumerated family offenses within the FCA.
The petitioner also accused the respondent of making a false report to the police and taking a swing at him. The respondent denied these allegations. The Court does not find the petitioner's testimony to be credible as related to this allegation.
Finally, the Court feels it is necessary to address the totality of the parties' relationship. In addition to the matters addressed above, the petitioner often complained of how the respondent treated him. If his testimony were believed, the respondent's conduct would have amounted to a course of conduct sufficient to constitute harassment in the second degree, a violation of the Penal Law enumerated in FCA § 812(1); however, the Court does not credit the petitioner's testimony. The Court believes that the petitioner has declared war with his family over use and occupancy of the family home. In the past, the petitioner has gone so far as to change the lock on the common front door without providing keys to the other residents. Moreover, the petitioner clearly takes issue with his daughter's sexual orientation as he appeared unable to comprehend that the Court did not share his outrage that his daughter's same-sex partner resided with him, or especially that they had the audacity to hold hands and kiss on the front porch.
The petitioner needs to repair the relationship with his daughter, if he can, and accept her for who she is. Filing meritless family offense petitions will not aid in that effort. Based upon the foregoing, the Court hereby dismisses the family offense petition in its entirety. Dated: January 28, 2015 Hon. John J. Kelley, J.F.C.