| Matter of Wendy Q. v Jason Q. |
| 2012 NY Slip Op 03250 [94 AD3d 1371] |
| April 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Wendy Q., Appellant, v Jason Q., Respondent.(And Another Related Proceeding.) |
—[*1] William L. Koslosky, Utica, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Otsego County (Lambert, J.), enteredJune 27, 2011, which, among other things, dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 8, for an order of protection.
The parties, married but living apart since 2009, are the parents of a son (born in 2001).Respondent lives in Michigan and, reportedly, has custody of the son pursuant to a Californiacustody order (which assertedly permitted him to relocate to Michigan with the son), which hasnot been registered for enforcement in New York. The son lived with respondent in Michigan forawhile, and came to live with or visit petitioner in July 2010. In December 2010, petitionercommenced a family offense proceeding pursuant to Family Ct Act article 8 alleging thatrespondent committed the offenses of aggravated harassment in the second degree and recklessendangerment, during three phone calls to her home on November 29, 2010. Family Court issueda temporary order of protection, ex parte, on behalf of petitioner and the son; petitioner thereaftercommenced a second proceeding alleging that respondent had willfully violated that order onDecember 10, 2010 by telephoning her home and leaving a voice-mail message on the day thetemporary order was served upon him.
After a fact-finding hearing, Family Court, finding that petitioner had not proven her [*2]allegations,[FN1]dismissed the family offense petition and vacated the temporary order of protection. Regardingthe violation petition, the court determined that respondent had violated the temporary order ofprotection by calling petitioner's home after being served with that order, held him in contemptand, as its sanction, admonished him from the bench. Petitioner appeals, and weaffirm.[FN2]
At the hearing, the parties offered somewhat differing accounts of the telephone calls.Petitioner testified that respondent called to speak with the son about upcoming school vacationtravel plans to Michigan, the son was not then available, so she indicated that she would have theson return his call; petitioner then indicated that she wanted respondent to sign their divorcepapers before the son's travel to Michigan, causing respondent to become "infuriated" and use"vulgar language," and petitioner hung up the phone. When the son returned respondent's call,the son began crying and petitioner hung up the phone again, telling respondent that he had upsetthe son, which caused her and the son to be upset that evening. Respondent called petitioner twomore times that evening, once leaving a message and once briefly arguing with her.
Respondent testified that he called his son to discuss the plans for him to travel to Michiganover his upcoming break, and petitioner offered to let the visit take place at her home (respondentrefused); petitioner then stated that she would not allow the son to travel unless respondentsigned the divorce papers. Respondent admitted raising his voice and using obscenities, statingthat he was upset about being denied time with his son. Respondent testified that, when the soncalled back, the son became upset when respondent told him that petitioner would not allow theplanned visit. After petitioner hung up the phone, respondent called back twice trying to comfortthe son.
Family Court credited respondent's account over that of petitioner and "great weight must begiven to the trier of fact who is in the best position to assess the credibility of witnesses" (Matter of Mauzy v Mauzy, 40 AD3d1147, 1148 [2007]; see Matter ofMelissa K. v Brian K., 72 AD3d 1129, 1133 [2010]). To be sure, "making a telephonecall will constitute aggravated harassment in the second degree when it is made 'with intent toharass, annoy, threaten or alarm another person' and is made either 'in a manner likely to causeannoyance or alarm' or 'with no purpose of legitimate communication' " (Matter of Draxler v Davis, 11 AD3d760, 760 [2004], quoting Penal Law § 240.30 [1], [2]; see Matter of Jennifer G. v BenjaminH., 84 AD3d 1433, 1435 [2011]). Crediting respondent, Family Court concluded that itwas not his intent to harass, alarm, threaten or annoy petitioner or the child but, rather, hislegitimate objective was "to speak with the child and discuss travel plans for the holidays and thesubsequent fact that those travel plans were not going to happen." While not condoningrespondent's reaction to petitioner's refusal to allow the visit or her interjection of the divorcematter into the planned visitation, the court concluded that the child became upset over the lossof the visit and not as a result of [*3]respondent's reaction. FamilyCourt's determination that petitioner failed to prove by a preponderance of the evidence(see Family Ct Act § 832) that respondent committed aggravated harassment issupported by the record and is affirmed (see Matter of Yishak v Ashera, 68 AD3d 1282, 1284 [2009];Matter Mauzy v Mauzy, 40 AD3d at 1148; Ahr v McElligott, 307 AD2d 484, 485[2003]).
Finally, we discern no reason to disturb Family Court's discretionary decision to admonishrespondent as punishment for violating the temporary order of protection, and to not issue apermanent order of protection (see Family Ct Act § 841 [d]; § 846-a; Matter of Daniel L. v Lois M., 81AD3d 1106, 1107-1108 [2011]; Matter of Leighton-Ryan v Ryan, 274 AD2d 775,776 [2000]). Petitioner's remaining claims lack merit.
Mercure, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Contrary to arguments raised inpetitioner's brief, Family Court did not dismiss the petition pursuant to CPLR 3211 but, rather,heard testimony, made credibility determinations, and ruled, as factfinder, on the merits.
Footnote 2: Petitioner has abandoned anyclaim regarding the reckless endangerment offense by not raising it in her brief (see Matter of Jodi S. v Jason T., 85AD3d 1239, 1241 n 2 [2011]).