| Matter of Savas v Bruen |
| 2016 NY Slip Op 03512 [139 AD3d 737] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Joelle Savas,Respondent, v Daniel Joseph Bruen, Appellant. |
Arleen Lewis, Blauvelt, NY, for appellant.
Lynn J. Brustein-Kampel, P.C., New City, NY, for respondent.
Jeffrey Schonbrun, New City, NY, attorney for the child.
Appeal from an order of protection of the Supreme Court, Rockland County (IDVpart) (Victor J. Alfieri, Jr., J.), dated December 17, 2014. The order of protection, upon adecision of that court dated December 1, 2014, made after a hearing, finding that theappellant committed the family offense of harassment in the second degree and violated atemporary order of protection, directed the appellant, inter alia, to participate in abatterer's education program and pay the costs thereof and to pay $7,500 in attorney'sfees to the attorney for the petitioner in monthly installments of $312.50.
Ordered that the order of protection is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family CourtAct article 8, alleging that the appellant committed harassment in the first or seconddegrees during an alleged altercation that occurred on January 13, 2013. On January 17,2013, a temporary order of protection was issued in favor of the petitioner and againstthe appellant, requiring the appellant, inter alia, to stay away from her and refrain fromharassing her. The petitioner subsequently filed a petition alleging that the appellantviolated the temporary order of protection by following her in his car on February 21,2013. After a fact-finding hearing, the Supreme Court determined that the appellant hadcommitted the family offense of harassment in the second degree, and violated thetemporary order of protection. After a dispositional hearing, the Supreme Court issued anorder of protection in favor of the petitioner. The order of protection, among otherthings, directed the appellant to stay away from the petitioner, to participate in a 52-weekbatterer's education program and pay the costs thereof, and to pay $7,500 in attorney'sfees to the attorney for the petitioner in monthly installments of $312.50.
Contrary to the appellant's contention, the Supreme Court properly determined thatthe petitioner established, by a preponderance of the evidence, that he committed thefamily offense of harassment in the second degree by pushing the petitioner to theground on January 13, 2013 (see Penal Law § 240.26 [1]; Family CtAct §§ 812 [1]; 832; Matter of Buskey v Buskey, 133 AD3d 655 [2015]). Thedetermination of whether a family offense was committed is a factual issue to be resolvedby the hearing court, and that court's determination regarding the credibility of witnessesis entitled to great weight on appeal unless clearly unsupported by the record (seeMatter of Niyazova v Shimunov, [*2]134 AD3d1122 [2015]; Matter of Tulshi vTulshi, 118 AD3d 716 [2014]; Matter of Miloslau v Miloslau, 112 AD3d 632 [2013]).Here, the court credited the petitioner's account of the events that occurred on the subjectdate, and that of her mother, over the appellant's account of the incident. There is nobasis to disturb this credibility determination (see Matter of Kiani v Kiani, 134 AD3d 1036 [2015]; Matter of Amato v Amato, 100AD3d 988 [2012]).
The Supreme Court also properly determined that the petitioner established, by clearand convincing evidence, that the appellant willfully failed to obey the temporary orderof protection when he followed her on February 21, 2013 (see Family Ct Act§§ 846, 846-a; Matter of Rubackin v Rubackin, 62 AD3d 11, 21 [2009]).This determination was also heavily dependent on the court's credibility determinations,which are supported by the record (see Matter of Kiani v Kiani, 134 AD3d at1036; Matter of Amato v Amato, 100 AD3d at 988).
The Supreme Court providently exercised its discretion in directing the appellant toparticipate in a batterer's education program and pay the costs thereof (see FamilyCt Act §§ 841, 842 [g]; Matter of Manco v Manco, 116 AD3d 857, 858 [2014]; Matter of Salazar v Melendez,97 AD3d 754 [2012]). Further, the court providently exercised its discretion indirecting the appellant to pay $7,500 in attorney's fees to the attorney for the petitioner inmonthly installments of $312.50 (see Family Ct Act §§ 841,842 [f]; 846-a; Matter ofMistretta v Mistretta, 85 AD3d 1034, 1035 [2011]). The amount of reasonablefees was addressed at the dispositional hearing and the award was supported by theevidence (see Matter of Birch vSayegh, 9 AD3d 514, 516-517 [2004]). The petitioner had the right to counselof her own choosing, and the fact that her mother paid to retain private counsel on herbehalf is not a basis to disturb the award (see Family Ct Act § 262[a] [ii]; Matter of Collier vNorman, 69 AD3d 936 [2010]). Finally, the court sufficiently considered theappellant's indigent status by discounting the petitioner's request by 50% and giving theappellant two years to pay (see Matter of Birch v Sayegh, 9 AD3d at 517).Rivera, J.P., Balkin, Barros and Connolly, JJ., concur.