Mary C. v. Anthony C.

Apr 7, 2009
Versions:61 A.D.3d 682
877 N.Y.S.2d 366

In a family offense proceeding pursuant to Family Court Act article 8 and a related custody proceeding, the father appeals from (1) an order of protection of the Family Court, Richmond County (DiDomenico, J.), dated April 3, 2008, which, upon the denial of his motion to dismiss the petition for lack of subject matter jurisdiction, and upon his default in appearing for a hearing, directed him, inter alia, to stay away from the petitioner and the subject child until April 2, 2010, and (2) an order of the same court, also dated April 3, 2008.

Ordered that the order of protection is reversed, on the law, without costs or disbursements, the petition is denied, and the family offense proceeding is dismissed; and it is further,

Ordered that the appeal from the order dated April 3, 2008 is dismissed as abandoned, without costs or disbursements.

Where, as here, the order of protection was issued upon the “appellant‘s default, ‘review is limited to matters which were the subject of contest below’ ” (Diamond v Diamante, 57 AD3d 826, 827 [2008], quoting Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [2006]; see James v Powell, 19 NY2d 249, 256 [1967]). Since the issue of subject matter jurisdiction was the subject of contest before the Family Court, that issue is subject to review on appeal (see Matter of Constance P. v Avraam G., 27 AD3d at 755).

Turning to the merits, the father is correct that the Family Court article 8 petition should have been dismissed for lack of subject matter jurisdiction “because the acts alleged to have been committed by the father [sexual abuse] are not the proper subject of a family offense proceeding. Criminal acts not specifically enumerated in the statute are deemed excluded” (Matter of Rachel L. v Abraham L., 37 AD3d 720, 721-722 [2007]; see Family Ct Act § 812 [1]; Matter of Steinhilper v Decker, 35 AD3d 1101, 1102 [2006]; Matter of Hamm-Jones v Jones, 267 AD2d 904 [1999]). Since the Family Court lacked subject matter jurisdiction, the order of protection must be reversed, the petition denied, and the family offense proceeding dismissed. Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.