| Matter of Marquardt v Marquardt |
| 2012 NY Slip Op 05457 [97 AD3d 1112] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Paul D. Marquardt, Respondent, v Ursula M.Marquardt, Appellant. |
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Appeal from an order of the Family Court, Genesee County (Eric R. Adams, J.), enteredMarch 14, 2011 in a proceeding pursuant to Family Court Act article 8. The order, insofar asappealed from, found that respondent had committed a family offense.
It is hereby ordered that the order insofar as appealed from is reversed on the law withoutcosts and the amended petition is dismissed.
Memorandum: Respondent wife appeals from an order of fact-finding and disposition inwhich Family Court concluded that she committed acts constituting the family offense ofharassment in the first or second degree against petitioner husband (Family Ct Act § 812[1]; Penal Law §§ 240.25, 240.26 [3]). Initially, we note that the order of protectionissued in conjunction with the order on appeal has expired, and we thus generally would dismissthe appeal as moot (see Matter ofKristine Z. v Anthony C., 43 AD3d 1284, 1284-1285 [2007], lv denied 10 NY3d705 [2008]). Here, however, respondent challenges only Family Court's finding that shecommitted a family offense and, " 'in light of enduring consequences which may potentially flowfrom an adjudication that a party has committed a family offense,' the appeal from so much of theorder . . . as made that adjudication is not academic" (Matter of Hunt v Hunt, 51 AD3d924, 925 [2008]).
With respect to the merits, the court concluded that respondent committed a family offenseby engaging in acts that would constitute either first or second degree harassment "by cuttingopen [her] pills on the counter, knowing that the Petitioner has allergies" to medications. Weagree with respondent that the evidence is not legally sufficient to establish that she committed afamily offense. "A petitioner bears the burden of proving by a preponderance of the evidence thatrespondent committed a family offense" (Matter of Chadwick F. v Hilda G., 77 AD3d 1093, 1093-1094[2010], lv denied 16 NY3d 703 [2011]). Although harassment in the first or seconddegree is a family offense (see Family Ct Act § 812 [1]), and we afford greatdeference to the court's determination of credibility (see Matter of Gray v Gray, 55 AD3d 909, 909 [2008]; Matter of Wallace v Wallace, 45 AD3d599 [2007]), we conclude that petitioner failed to establish by a preponderance of theevidence that respondent engaged in acts constituting either offense. Thus, the court erred infailing to dismiss the amended petition (see generally Matter of Woodruff v Rogers, 50 AD3d 1571,1571-1572 [2008], lv denied 10 NY3d 717 [2008]).[*2]
To establish that respondent committed acts constitutingharassment in the second degree, petitioner was required to establish that respondent engaged inconduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed orseriously annoyed by the conduct, and that the conduct served no legitimate purpose (seePenal Law § 240.26 [3]; Matter of Ebony J. v Clarence D., 46 AD3d 309 [2007]; Matterof Cavanaugh v Madden, 298 AD2d 390, 392 [2002]). Even assuming, arguendo, thatpetitioner was alarmed or seriously annoyed by the conduct of respondent in opening hermedicine to eat it with pudding based on her inability to swallow the pills, and further assuming,arguendo, that respondent thereby intended to harass, annoy or alarm him, we conclude thatpetitioner failed to establish that the conduct served no legitimate purpose (see generallyChadwick F., 77 AD3d at 1094; Matter of Charles E. v Frank E., 72 AD3d 1439, 1441 [2010]; Matter of Eck v Eck, 44 AD3d1168, 1169 [2007], lv denied 9 NY3d 818 [2008]). Indeed, petitioner testified thatrespondent took the medication as prescribed to prevent acid reflux, and that respondent openedthe pills and ate the medication with food because she was unable to swallow the pills. Withrespect to petitioner's allegation that he was allergic to certain medications, he failed to establishthat he was allergic to the particular medication taken by respondent, or to introduce any expertevidence in support of his testimony that the medication was "a poison, a toxic poison that causesdeath."
Similarly, petitioner failed to establish that respondent's acts constituted harassment in thefirst degree. That statute requires, inter alia, that the perpetrator commit "acts which place[another person] in reasonable fear of physical injury" (Penal Law § 240.25). Evenassuming, arguendo, that petitioner was in fear of physical injury when respondent opened hermedication, we conclude for the reasons set forth above that he failed to establish that his fearwas reasonable.
All concur except Martoche, J., who dissents and votes to affirm in the followingmemorandum.
Martoche, J. (dissenting). I respectfully dissent, and would affirm the order insofar asappealed from. In my view, petitioner husband established by a preponderance of the evidencethat respondent wife committed a family offense, and I agree with the majority that FamilyCourt's finding that she did so is not academic despite the fact that the underlying order ofprotection has expired (see Matter ofHunt v Hunt, 51 AD3d 924, 925 [2008]). Preliminarily, I note that, in this proceeding,respondent filed an amended petition in which she accused petitioner of engaging in acts againsther that constituted disorderly conduct, harassment, aggravated harassment and attemptedassault. The relevant acts included one incident in which petitioner screamed at respondent andripped apart her rosary beads, and a second incident when, while calling respondent names,petitioner struck respondent with a door upon opening it and then tried to rip the door off itshinges. Petitioner in turn filed an amended family offense petition against respondent, allegingthat she committed the family offenses of reckless endangerment, harassment and menacing.Specifically, petitioner alleged that on several occasions respondent opened capsules ofcontrolled substances in his presence on eating surfaces in the kitchen even though he hadinformed her that he was allergic to the controlled substances. Petitioner further alleged that,despite his repeated protests, respondent continued to open the capsules in his presence. Thecourt considered both amended petitions at the fact-finding hearing. The only witnesses were theparties and their relatives. The court granted stay away orders of protection against each party,which expired in March 2012. The court found that respondent "engaged in conduct constitutingharassment in that she with the intent to harass or to alarm or annoy the petitioner did after beingasked to refrain from doing so cut open medications on a kitchen counter where food is preparedwith knowledge that . . . the petitioner has allergies to certain medications andwould be annoyed and alarmed by the respondent continuing to engage in such conduct." Thecourt also found that petitioner committed the family offense of disorderly conduct, when heslammed the basement door with sufficient force to damage the door frame "in such a manner tofrighten and alarm the [respondent]," and that petitioner committed another family offense ofdisorderly conduct, when [*3]he admittedly destroyedrespondent's rosary beads without justification. The court stated in its decision that "ninetypercent of the testimony" at the hearing was "utter nonsense" and warned the parties that it would"not waste another entire day listening to what [it] consider[ed] to be inane blather" if either partyviolated the orders of protection. In a previous appeal by petitioner, this Court affirmed the orderdetermining, inter alia, that he committed a family offense against respondent (Matter of Marquardt v Marquardt, 94AD3d 1436 [2012]).
In my view, the court's "assessment of the credibility of the witnesses is entitled to greatweight" (Matter of Scroger vScroger, 68 AD3d 1777, 1778 [2009], lv denied 14 NY3d 705 [2010]). Thiscase in particular is appropriate for application of our general rule deferring to the findings madeby Family Court after the court has made credibility determinations. Here, the parties chose toavail themselves of the judicial system for acts that otherwise did not warrant police intervention.The majority concludes that petitioner failed to establish that respondent's conduct served nolegitimate purpose with respect to harassment in the second degree. I cannot agree with thatconclusion. Petitioner testified that, while respondent may have needed to take her medication,she did not need to take her medication on eating surfaces in the kitchen and did so despite hisobjections to her conduct. The majority further concludes that petitioner failed to establish that hewas allergic to the particular medication taken by respondent, but his testimony that he hadallergies to the medications was credited by the court and I see no reason to disturb that factualdetermination. Similarly, the majority concludes that, with respect to harassment in the firstdegree, petitioner failed to establish that his fear of physical injury from respondent opening hermedication was reasonable. The testimony of petitioner established, however, that he was allergicto many medicines and that he was fearful of ingesting respondent's medications.
Finally, in my view, the court disposed of both amended petitions together, as evidenced bythe fact that it issued mutual orders of protection. The parties obviously were antagonistic towardeach other, and the court made findings with respect to the actions of each party against the other.Further, the court warned the parties that it regarded the family offense petitions as relativelyminor. I agree with the court's admonition to the parties that they should not use the judicialsystem to resolve domestic disputes that are not of a serious nature. Certainly, the "crimes"committed by both parties were minor and did not require police intervention. I see no reason todisturb the court's credibility determinations with respect to petitioner's amended petition, just aswe determined in petitioner's prior appeal that "[t]he court's 'assessment of the credibility of thewitnesses is entitled to great weight' " (Marquardt, 94 AD3d 1436, 1437).Present—Smith, J.P., Fahey, Peradotto, Sconiers and Martoche, JJ.