Matter of Matheson v. Matheson

Jun 22, 2016
2015-01335
Versions:140 A.D.3d 1068
35 N.Y.S.3d 167
2016 NY Slip Op 04942

49 In the Matter of Kevin K. Matheson, Appellant, v Edel M. Matheson, Respondent. [35 NYS3d 167]—

Appeal from an order of the Family Court, Kings County (Leticia M. Ramirez, J.), dated January 15, 2015. The order, after a hearing, dismissed with prejudice the petitioner’s family offense petition against the respondent.

Ordered that the order is affirmed, without costs or disbursements.

The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, his wife, alleging, inter alia, that she committed the family offense of assault in the third degree by striking him about the head and face with her fists. Following a fact-finding hearing, the Family Court determined that the credible evidence failed to support a finding that the respondent committed a family offense, and dismissed the petition with prejudice.

In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct Act § 832; Matter of Buskey v Buskey, 133 AD3d 655 [2015]; Matter of Cassie v Cassie, 109 AD3d 337 [2013]; Matter of Khan-Soleil v Rashad, 108 AD3d 544 [2013]). Whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determinations as to credibility issues are entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record (see Matter of Niyazova v Shimunov, 134 AD3d 1122 [2015]; Matter of Goldring v Sprei, 121 AD3d 894 [2014]; Matter of Messana v Messana, 115 AD3d 860 [2014]).

Contrary to the petitioner’s contention, the Family Court did not err in finding that the credible evidence failed to establish that the respondent committed the family offense of assault in the third degree (see Penal Law § 120.00). The court’s credibility determinations are supported by the record, and we discern no basis for disturbing the order dismissing the petition (see Matter of Little v Renz, 137 AD3d 916 [2016]; Matter of Buskey v Buskey, 133 AD3d 655 [2015]; Matter of Goldring v Sprei, 121 AD3d 894 [2014]).

The petitioner’s remaining contention is without merit.

Accordingly, the Family Court properly dismissed the family offense petition with prejudice. Mastro, J.P., Austin, Sgroi and Maltese, JJ., concur.