DANIELS, TRISHA M. v. DAVIS, JUSTIN M.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
544
CAF 13-02185
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.
IN THE MATTER OF TRISHA M. DANIELS,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
JUSTIN M. DAVIS, RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET SOMES OF
COUNSEL), PRO BONO APPEALS PROGRAM, ALBANY, FOR RESPONDENT-APPELLANT.
Appeal from an order of the Family Court, Monroe County (Paul M.
Riordan, R.), entered October 24, 2013 in a proceeding pursuant to
Family Court Act article 8. The order, among other things, directed
respondent to have no offensive contact with petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the family offense
petition is dismissed.
Memorandum: In this proceeding brought pursuant to Family Court
Act article 8, respondent appeals from an order of protection
requiring him, inter alia, to refrain from offensive conduct toward
petitioner and granting petitioner temporary custody of the parties’
three children subject to defined visitation by respondent. We agree
with respondent that the appeal has not been rendered moot by the
expiration of the order of protection, which “still imposes
significant enduring consequences upon respondent, who may receive
relief from those consequences upon a favorable appellate decision”
(Matter of Veronica P. v Radcliff A., 24 NY3d 668, 671; see Matter of
Shephard v Ray, 137 AD3d 1715, 1716). We further agree with
respondent that Family Court erred in disposing of the matter on the
basis of respondent’s purported default. As we have repeatedly held,
a respondent who fails to appear personally in a matter but
nonetheless is represented by counsel who is present when the case is
called is not in default in that matter (see Matter of Manning v
Sobotka, 107 AD3d 1638, 1638-1639; Matter of Erie County Dept. of
Social Servs. v Thompson, 91 AD3d 1327, 1328; Matter of Cleveland W.,
256 AD2d 1151, 1151-1152).
Finally, we conclude that petitioner failed to establish by a
fair preponderance of the evidence that respondent committed the
family offense of harassment in the second degree (Penal Law § 240.26
[1], [3]; see Family Ct Act § 832; Shephard, 137 AD3d at 1716). In
this non-default posture, the brief colloquy between the court and
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CAF 13-02185
petitioner, who merely “re-verif[ied]” the allegations of the
petition, was insufficient to establish respondent’s commission of the
family offense. Here, the hearing record contains no evidence
concerning the content of the telephone calls made and the texts sent
by respondent in the context of the parties’ custody/visitation
dispute, and thus there is no evidentiary basis for a finding that
respondent engaged in a course of conduct that was intended to alarm
or seriously annoy petitioner and lacked any legitimate purpose (see
Penal Law § 240.26 [3]; Shephard, 137 AD3d at 1716). Nor was evidence
presented at the hearing sufficient to support a finding that
respondent attempted or threatened to strike, shove or kick petitioner
or otherwise subject her to physical contact (see § 240.26 [1]).
Entered: June 10, 2016 Frances E. Cafarell
Clerk of the Court