| Matter of Willis v Rhinehart |
| 2010 NY Slip Op 06426 [76 AD3d 641] |
| August 17, 2010 |
| Appellate Division, Second Department |
| In the Matter of Frances K. Willis, Respondent, v John C.Rhinehart, Appellant. |
—[*1] Michael R. Varble, Poughkeepsie, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, John C. Rhinehartappeals from an order of protection of the Family Court, Dutchess County (Sammarco, J.),entered May 7, 2009, which, after a fact-finding hearing, and, in effect, upon a finding that hecommitted the family offense of aggravated harassment in the second degree, directed him, interalia, to refrain from communication or any other contact with the petitioner, Frances K. Willis,up to and including May 7, 2010.
Ordered that the order of protection is affirmed, without costs or disbursements.
Although the order of protection expired by its own terms on May 7, 2010, the appeal hasnot been rendered academic in light of the enduring consequences which may potentially flowfrom a finding that the appellant committed a family offense (see Matter of Wallace v Wallace, 45 AD3d 599 [2007]; Matterof Hogan v Hogan, 271 AD2d 533 [2000]).
The Family Court is a court of limited subject matter jurisdiction, and "cannot exercisepowers beyond those granted to it by statute" (Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366 [2008]).The Family Court's jurisdiction in family offense proceedings is limited to certain enumeratedacts that occur "between spouses or former spouses, or between parent and child or betweenmembers of the same family or household" (Family Ct Act § 812 [1]; see Matter of Seye v Lamar, 72 AD3d975, 976 [2010]).
Effective July 21, 2008 (see L 2008, ch 326, § 16), the Legislature expandedthe definition of "members of the same family or household" to include, among others, "personswho are not related by consanguinity or affinity and who are or have been in an intimaterelationship regardless of whether such persons have lived together at any time" (Family Ct Act§ 812 [1] [e]; see Matter of Seye v Lamar, 72 AD3d at 976). Beyond excludingfrom the definition of "intimate relationship" a "casual acquaintance" and "ordinaryfraternization between two individuals in business or social contexts" (Family Ct Act §812 [1] [e]), the Legislature left it to the courts to [*2]determineon a case-by-case basis what qualifies as an "intimate relationship" within the meaning of FamilyCourt Act § 812 (1) (e), suggesting factors which the court may consider (see Matterof Seye v Lamar, 72 AD3d at 976-977). Those factors include "the nature or type ofrelationship, regardless of whether the relationship is sexual in nature; the frequency ofinteraction between the persons; and the duration of the relationship" (Family Ct Act §812 [1] [e]).
Here, the Family Court properly determined, among other things, that the petitioner and theappellant were "persons . . . who . . . have been in an intimaterelationship" (Family Ct Act § 812 [1] [e]). Accordingly, the Family Court properlydetermined that it had subject matter jurisdiction to entertain the petition.
The appellant contends that in order for the Family Court to entertain a family offenseproceeding between "persons . . . who . . . have been in an intimaterelationship" (Family Ct Act § 812 [1] [e]), that relationship must have ended at a timerelatively recent to the filing of the petition. However, the appellant's contention is without merit.Neither the plain language of the amendment to Family Court Act § 812, nor theamendment's legislative history, supports the appellant's contention. We note that theLegislature, which, in 1984 (see L 1984, ch 948, § 7), amended Family Court Act§ 812 to permit the Family Court to entertain family offense proceedings between"persons formerly married to one another" without indicating that the recency of the dissolutionof the marriage was a relevant consideration (Family Ct Act § 812 [1] [c]), could haveindicated, but did not indicate, that the recency of the termination of the "intimate relationship"is a relevant consideration (cf. Conn Gen Stat § 46b-15 [a] [providing that certainpersons, including those who are "in, or [have] recently been in, a dating relationship," may seekorders of protection against each other]).
The determination of whether a family offense was committed is a factual issue to beresolved by the Family Court, and that court's determination regarding the credibility ofwitnesses is entitled to great weight on appeal, and will not be disturbed unless clearlyunsupported by the record (see Matterof Creighton v Whitmore, 71 AD3d 1141 [2010]). Here, the fair preponderance of theevidence adduced at the fact-finding hearing supported the Family Court's finding that theappellant committed the family offense of aggravated harassment in the second degree (seeFamily Ct Act § 812 [1]; Penal Law § 240.30 [1] [a]).
The appellant's remaining contentions are either without merit or not properly before thisCourt. Covello, J.P., Angiolillo, Leventhal and Sgroi, JJ., concur.