Matter of Daniel W. v. Kimberly W. , 24 N.Y.S.3d 232 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 7, 2016 518880
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In the Matter of DANIEL W.,
Respondent,
v MEMORANDUM AND ORDER
KIMBERLY W.,
Appellant.
(And Another Related Proceeding.)
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Calendar Date: November 24, 2015
Before: Garry, J.P., Rose, Lynch, Devine and Clark, JJ.
__________
Justin C. Brusgul, Voorheesville, for appellant.
Daniel W., Clifton Park, respondent pro se.
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Clark, J.
Appeal from an order of the Family Court of Saratoga County
(Hall, J.), entered April 16, 2014, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 8, for an order of protection.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the divorced parents of three sons
(born in 1998, 1999 and 2002). On December 23, 2013, the father
filed a family offense petition against the mother, followed by
an amended petition, seeking, among other things, an order of
protection. The father's petition, as amended, alleged that the
mother committed the offenses of harassment and menacing, when,
on December 20, 2013, she and her boyfriend interfered with the
father's custodial time with the children, during which incident
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the boyfriend exhibited menacing behavior toward the father. On
the same day, the mother filed her own family offense petition
against the father, also seeking an order of protection, among
other relief. The mother alleged that the father committed the
offenses of disorderly conduct and harassment when, on December
20, 2013, he approached her car and confronted and threatened
her. A temporary order of protection was entered against the
father directing him to refrain from offensive conduct against
the mother. After several court appearances on the parties'
petitions, Family Court, on its own motion and over the mother's
continuous objections indicating that she would not consent to
mutual orders of protection containing certain terms unrelated to
the allegations set forth in the father's petition, entered
mutual two-year orders of protection. The mother now appeals
from the order of protection issued against her.
We reverse and vacate the subject order of protection.
Initially, the order of protection issued against the mother
states that it was entered "[o]n [her c]onsent." However, a
review of the record reveals that the mother did not consent to
the order because it contained the terms to which she had
strenuously objected. In particular, during the initial
appearance, Family Court denied the father's request for a
temporary order of protection against the mother, continued the
temporary order of protection against the father, and adjourned
the proceeding to allow the parties to secure counsel. When the
case resumed on April 8, 2014, Family Court indicated that, after
having an off-the-record discussion with the parties' attorneys,
it was going to resolve the petitions by issuing reciprocal
orders of protection that would mirror each other. The court
further indicated that the mutual orders of protection would
direct each party to refrain from offensive conduct against each
other, that the order of protection entered against the mother
would also include a prohibition against the presence of her
boyfriend at the transfers of the children, and that such orders
would last for two years.
After an exchange of proposals by the parties' counsel, the
mother, in a letter dated April 15, 2014, objected to several
terms of the father's proposed orders of protection. In
particular, the mother stated, among other things, that she had
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requested simple mutual "refrain from" orders of protection,
without several other restrictions proposed by the father, and
objected to being made responsible for ensuring that her
boyfriend stay at least 25 feet away from the father while in a
public place or at a public event because the father's family
offense petition did not allege any tensions between the parties
at public activities or public events. The mother resumed these
objections at the appearance held on April 15, 2014, indicating
that she did not agree with the orders containing such terms;
however, Family Court overruled her objections and entered mutual
orders of protection on its own motion. Therefore, this is not a
case where a party cannot appeal from an order entered on his or
her consent (see generally Matter of Mayorca-Piccolo v Piccolo,
37 AD3d 913, 913 [2007], lv dismissed 8 NY3d 994 [2007]; compare
Matter of Ras v Rupp, 295 AD2d 892, 893 [2002]).
Turning to the merits, Family Ct Act § 154-c (3) provides,
in relevant part: "No order of protection may direct any party to
observe conditions of behavior unless: (i) the party requesting
the order of protection has served and filed a petition or
counter-claim in accordance with article four, five, six or eight
of this act and, (ii) the court has made a finding on the record
that such party is entitled to issuance of the order of
protection which may result from a judicial finding of fact,
judicial acceptance of an admission by the party against whom the
order was issued or judicial finding that the party against whom
the order is issued has given knowing, intelligent and voluntary
consent to its issuance" (emphasis added). Although a Family
Court can issue a temporary order of protection on its own motion
and, in so doing, it would "not [be] required to follow all of
the ordinary procedural requirements" (Matter of Stalker v
Stalker, 88 AD3d 1177, 1177-1178 [2011]; see Family Ct Act § 828
[1] [a]), where, as here, the court enters a final order of
protection, it is required to observe the procedural steps set
forth in Family Ct Act § 154-c (3) (see generally Matter of
Mayorca-Piccolo v Piccolo, 37 AD3d at 913). Indeed, Family Ct
Act § 154-c (3) was amended in 1998 "to incorporate, explicitly,
federal minimum due-process requirements regarding judicial
findings as a prerequisite to issuing orders of protection, to
ensure that such orders are given full faith and credit by courts
of other jurisdictions" (1 NY Law of Domestic Violence § 3:50;
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see L 1998, ch 597, § 5; 18 USC §§ 2265, 2266).
Here, although there was an exchange of proposed terms for
mutual orders of protection, the mother clearly indicated that
she did not consent to the orders containing the terms that
Family Court ultimately adopted on its own motion or admit any
pertinent allegations set forth in the father's family offense
petition (see generally Matter of Mayorca-Piccolo v Piccolo, 37
AD3d at 913). Nor did Family Court conduct an examination of the
factual basis of the parties' family offense petitions or make a
finding that the terms objected to by the mother were "reasonably
necessary" to protect the parties or their children (Matter of
Gil v Gil, 55 AD3d 1024, 1025 [2008]; see Family Ct Act § 842).1
Accordingly, because Family Court failed to follow the procedural
mandates of Family Ct Act § 154-c (3) (ii) in issuing the
challenged two-year order of protection against the mother, the
subject order should be vacated.
Garry, J.P., Rose, Lynch and Devine, JJ., concur.
ORDERED that the order is reversed, on the law, without
costs, and order of protection vacated.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
Notably, the father does not dispute that the order of
protection entered against the mother contained certain terms to
which she had never consented.