| Matter of Drury v Drury |
| 2011 NY Slip Op 09125 [90 AD3d 754] |
| December 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Wendell C. Drury, Respondent, v Linda M.Drury, Appellant. |
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In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals froman order of protection of the Family Court, Nassau County (Eisman, J.), dated March 28, 2011,which, after a fact-finding hearing and upon, in effect, a finding that she had committed certainfamily offenses within the meaning of Family Court Act § 812, directed her, inter alia, tostay away from the husband and his residence and place of employment and refrain fromcommunicating with him for a period of three years until and including March 27, 2014.
Ordered that the order of protection is modified, on the law, by deleting the provision thereofdirecting that it shall remain in effect until and including March 27, 2014, and substitutingtherefor a provision directing that the order of protection shall remain in effect until andincluding March 27, 2013; as so modified, the order of protection is affirmed, without costs ordisbursements.
The Family Court's determination as to whether a respondent committed acts constituting acognizable family offense is a factual issue for the Family Court to resolve, and "[a] familyoffense must be established by a fair preponderance of the evidence" (Matter of Thomas v Thomas, 72 AD3d834, 835 [2010]; see Family Ct Act § 832).
The Family Court failed to state on the record the facts that it deemed essential to itsdetermination to grant the petition for an order of protection (see CPLR 4213 [b];Matter of Jose L.I., 46 NY2d 1024, 1026 [1979]; Matter of Smith v Falco-Boric, 87 AD3d 1146, 1147 [2011]).However, remittal is not necessary because the record is sufficient for this Court to conduct anindependent review of the evidence (see Matter of Jose L.I., 46 NY2d at 1026; Matter of Destiny H. [Valerie B.], 83AD3d 939 [2011]; Matter of Smith v Falco-Boric, 87 AD3d at 1147). The evidenceadduced at the hearing established, by a preponderance of the evidence, that the wife committedthe family offenses of aggravated harassment in the second degree and harassment in the seconddegree, warranting the issuance of an order of protection (see Family Ct Act§§ 812, 832; Penal Law § 240.30 [2]; § 240.26 [3]; Matter of Hagopian v Hagopian, 66AD3d 1021 [2009]; Matter of Grayv Gray, 55 AD3d 909 [2008]; Matter of Robbins v Robbins, 48 AD3d 822 [2008]; Matter of Thomas v Thomas, 32 AD3d521 [2006]).
However, there was insufficient evidence to support the Family Court's finding of [*2]the existence of aggravating circumstances (see Family CtAct § 827 [a] [vii]; cf. Matter ofCharles v Charles, 21 AD3d 487, 488 [2005]; Matter of Flascher v Flascher, 298AD2d 393 [2002]; Matter of Reilly v Reilly, 254 AD2d 361 [1998]). Thus, the durationof the order of protection may not exceed a period of two years (see Family Ct Act§ 842). Accordingly, the order of protection must be modified to remain in effect up to andincluding March 27, 2013 (see Family Ct Act §§ 842, 827 [a] [vii]; Matter of Gelardi v Gelardi, 62 AD3d701 [2009]). Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.