| Matter of Testa v Strickland |
| 2012 NY Slip Op 06964 [99 AD3d 917] |
| October 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Stephen Testa, Respondent, v LauraStrickland, Appellant. |
—[*1] Dawn M. Shammas, Harrison, N.Y., attorney for the children.
In a family offense proceeding pursuant to Family Court Act article 8, Laura Stricklandappeals from (1) an order of protection of the Family Court, Orange County (Bivona, J.), datedJuly 13, 2011, directing her, inter alia, to stay away from the parties' two sons, and (2) an order ofthe same court dated July 25, 2011, which, after a hearing, and upon a finding that she hadcommitted the family offense of aggravated harassment, granted the petition, found that she hadcommitted the offense of harassment in the second degree, and continued the term of a temporaryorder of protection dated May 24, 2011, until July 12, 2013.
Ordered that the order of protection dated July 13, 2011, and the order dated July 25, 2011,are reversed, on the facts, without costs or disbursements, the petition is denied, and theproceeding is dismissed.
" '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 if supported by therecord' " (Matter of Salazar vMelendez, 97 AD3d 754, 755 [2012], quoting Matter of Richardson v Richardson, 80 AD3d 32, 43-44 [2010]). Ata fact-finding hearing pursuant to Family Court Act article 8, the petitioner has the burden ofestablishing the allegations contained in the petition by a "fair preponderance of the evidence"(Family Ct Act § 832; see Matterof Foxworth v DeJesus, 74 AD3d 1064 [2010]).
Here, the Family Court, after a hearing, made a finding on the record that the appellant hadcommitted the offense of aggravated harassment. However, the order dated July 25, 2011, statedthat she had committed the offense of harassment in the second degree. Where there is a conflictbetween an order or judgment and the court's decision upon which it was based, the decisioncontrols (see Matter of Harmon, 73AD3d 1059, 1061 [2010]; McLoughlin v McLoughlin, 63 AD3d 1017, 1019-1020 [2009]).
The petitioner did not establish by a fair preponderance of the evidence that the appellant'sacts of sending several text messages to the parties' eldest son in May 2011 constituted [*2]aggravated harassment in the second degree (see Family CtAct § 812 [1]; Penal Law § 240.30; Matter of Wendy Q. v Jason Q., 94 AD3d 1371, 1373 [2012]; Matter of Hasbrouck v Hasbrouck, 59AD3d 621, 622 [2009]) . In any event, the evidence also was not sufficient to establish by afair preponderance of the evidence that her acts constituted harassment in the second degree(see Family Ct Act § 812 [1]; Penal Law § 240.26 [3]; Matter of Ungar v Ungar, 80 AD3d771, 772 [2011]).
Since the record does not support the Family Court's determination that the appellantcommitted family offenses warranting the issuance of the order of protection, the order ofprotection, as well as the order dated July 25, 2011, must be reversed, the petition denied, and theproceeding dismissed (see Matter ofAruti v Aruti, 88 AD3d 700, 701 [2011]; Matter of Hasbrouck v Hasbrouck, 59AD3d at 622; Matter of Cavanaugh v Madden, 298 AD2d 390 [2002]).
In light of our determination, the appellant's remaining contentions have been renderedacademic. Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.