| Matter of Mistretta v Mistretta |
| 2011 NY Slip Op 05504 [85 AD3d 1034] |
| June 21, 2011 |
| Appellate Division, Second Department |
| In the Matter of Loretta Mistretta, Appellant, v PeterMistretta, Respondent. |
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In a family offense proceeding pursuant to Family Court Act article 8, the mother appeals, aslimited by her brief, from (1) so much of an order of protection of the Family Court, SuffolkCounty (Hoffman, J.), dated September 8, 2010, as, upon the denial of that branch of her petitionwhich was, in effect, to direct the father to vacate and stay away from the marital residence,failed to direct the father to vacate and stay away from the marital residence, and (2) so much ofan order of the same court dated September 25, 2010, as, after a fact-finding hearing, and upon afinding that the father violated a temporary order of protection, directed the father to pay counselfees in the sum of only $200.
Ordered that the order of protection dated September 8, 2010, is reversed insofar as appealedfrom, on the facts and in the exercise of discretion, and that branch of the petition which was, ineffect, to direct the father to vacate and stay away from the marital residence is granted; and it isfurther,
Ordered that the order dated September 25, 2010, is reversed insofar as appealed from, on thelaw, and the matter is remitted to the Family Court, Suffolk County, for further proceedingsconsistent herewith; and it is further,
Ordered that one bill of costs is awarded to the mother.
The Family Court determined that the father committed acts on November 7, 2009, and onJuly 3, 2010, which constituted family offenses. The Family Court issued an order of protectionto the mother pursuant to Family Court Act § 842 which required the father, inter alia, torefrain from committing any acts of assault, forcible touching, intimidation, or any criminaloffense against the mother and the parties' children. However, the Family Court, upon the denialof that branch of the mother's petition which was, in effect, to direct the father to vacate and stayaway from the marital residence, failed to make such directive. Upon our review of the record,we conclude that the Family Court improvidently exercised its discretion by denying that branchof the petition which was, in effect, to direct the father to vacate and stay away from the maritalresidence. The record demonstrates that the father engaged in physical violence against theparties' eldest son and the mother. Consequently, a directive to the father to vacate and stay awayfrom the marital residence is reasonably necessary to provide meaningful protection to themother and the parties' children, and to eradicate the root of the family disturbance (see Matter of Charles v [*2]Charles, 21 AD3d 487, 488 [2005]; Matter of AmyCohen L. v Howard N.L., 222 AD2d 677 [1995]; Merola v Merola, 146 AD2d 611,612 [1989]).
In directing the father to pay reasonable counsel fees upon finding that the father violated atemporary order of protection (see Family Ct Act § 846-a), the Family Courtawarded an amount of fees that was insufficient and lacked foundation in the record.Accordingly, the matter must be remitted to the Family Court, Suffolk County, for a hearing todetermine the amount of reasonable and necessary counsel fees incurred by the mother inconnection with her violation petition (see Family Ct Act § 846-a; Matter ofHallissey v Hallissey, 261 AD2d 544, 545 [1999]; Matter of Rogers v Rogers, 161AD2d 766, 767 [1990]).
The mother's remaining contentions are without merit. Skelos, J.P., Leventhal, Austin andSgroi, JJ., concur.