In the Matter of ANNETTE P. RICHARDSON, Respondent, v DOROTHY E. RICHARDSON, Appellant. (Proceeding No. 1.) In the Matter of ANDREW G. HOURIE, Respondent, v DOROTHY E. RICHARDSON, Appellant. (Proceeding No. 2.) In the Matter of AARON J. HOURIE, Respondent, v DOROTHY E. RICHARDSON, Appellant. (Proceeding No. 3.) In the Matter of DOROTHY E. RICHARDSON, Appellant, v ANDREW G. HOURIE, Respondent. (Proceeding No. 4.) In the Matter of DOROTHY E. RICHARDSON, Appellant, v ANNETTE P. RICHARDSON, Respondent. (Proceeding No. 5.) In the Matter of DOROTHY E. RICHARDSON, Appellant, v AARON J. HOURIE, Respondent. (Proceeding No. 6.)
Proceeding Nos. 1, 2, 3, 4, 5, 6
Supreme Court, Appellate Division, Second Department, New York
November 3, 2010
910 N.Y.S.2d 149
Homer W. Richardson, Brooklyn, for appellant.
Steven A. Feldman, Uniondale, for Andrew G. Hourie, respondent.
Joseph P. Abbenda, Glen Cove, for Aaron J. Hourie, respondent.
OPINION OF THE COURT
LEVENTHAL, J.
The principal issue presented on these appeals, which appears to be one of first impression for an appellate court in this state, is whether the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country. We hold that
On March 4, 2009, Annette P. Richardson and her sons Aaron J. Hourie and Andrew G. Hourie (hereinafter collectively the respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against Dorothy E. Richardson (hereinafter the appellant), Annette‘s mother, and her sons’ grandmother. The alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Elmont, Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla.1 According to the respondents, the appellant pushed Annette to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at Annette during the assault. In addition, the appellant allegedly used a glass bowl to strike Andrew on the head, causing injuries. Further, the appellant allegedly chased Aaron with a meat cleaver and threw an ashtray at him, which hit him in the back.
Thereafter, on March 6, 2009, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that
During an initial appearance before the Family Court, the appellant‘s counsel objected to the court‘s exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that “the fact that this took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They‘re [all residents] of Nassau County and they‘re entitled to protection from future occurrences. Family Orders of Protection ... are to prevent further hostility and further assault, attempted assault, ... et cetera.”
On June 24, 2009, after a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant had committed certain family offenses against them and granted the respondents’ respective petitions. The Family Court also entered three two-year orders of protection on behalf of the respondents and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant‘s three petitions.
The appeals are from the three orders of protection and from the three orders dismissing the appellant‘s petitions. We affirm.
As a threshold matter, it is evident that the Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents (see
The appellant‘s contentions provide this Court with an opportunity to address an issue which does not appear to have
The Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the State Constitution or by statute (see Matter of H.M. v E.T., 14 NY3d 521 [2010]; Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366 [2008]).
In that regard,
As relevant here,
“Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant‘s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.”
Furthermore,
Generally, in order to properly interpret a statute, a court should first consider the statute‘s plain language, which is “the most compelling evidence of the Legislature‘s intent” (Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328, 335 [2003]; see Hudson Val. Oil Heat Council, Inc. v Town of Warwick, 7 AD3d 572, 574 [2004]). Here, the plain language of
History of Article 8
Family Court Act article 8, as enacted in 1962, was intended by the New York State Legislature to provide “practical help” to domestic violence victims through the use of civil proceedings in the Family Court, in lieu of the previous practice of punishing the perpetrators of domestic violence through criminal court proceedings (2d Rep of Joint Legis Comm on Ct Reorganization, 1962 McKinney‘s Session Laws of NY, at 3444). Essentially, article 8, as originally enacted in 1962, “decriminalized what had heretofore been criminal acts amounting to assault or disorderly conduct perpetrated against certain family members” (Sobie, Practice Commentaries, McKinney‘s Cons Laws of NY,
In 1977, the Legislature vastly altered the jurisdiction of the Family Court and the criminal court with regard to family offenses, granting the Family Court and the criminal court “concurrent jurisdiction” (L 1977, ch 449, § 1, amending
In 1978, the Legislature further amended article 8 to include a three-day window whereby complainants, having filed a Family Court petition, or a district attorney, having filed an accusatory instrument in a criminal court, could choose to originate a proceeding in the alternate forum. At the conclusion of this three-day period, or after a finding by a court on the merits, whichever occurred earlier, the complainant‘s choice of forum became final, barring any subsequent proceeding based upon the same act(s) in an alternate court, and, in effect, ending the concurrent jurisdiction (see L 1978, ch 629, § 2, amending
The 1977 and 1978 amendments to article 8 were “designed to afford more effective relief to” domestic violence victims (Governor‘s Mem approving L 1977, ch 449, 1977 McKinney‘s Session Laws of NY, at 2501). In addition, the amendments were intended to increase the availability of remedies to domestic violence victims by “mak[ing] available the entire range of
The Legislature made its most recent major amendments to Family Court Act article 8 when it enacted the Family Protection and Domestic Violence Intervention Act of 1994 (hereinafter the 1994 Act), the purpose of which was to establish “stronger and more aggressive court intervention in family offense cases” (Senate Introducer Mem in Support, Bill Jacket, L 1994, ch 222, at 24). The 1994 Act eliminated the three-day choice of forum provision which had caused “victims of family offenses [to be] barred from initiating simultaneous proceedings in the family court and in the criminal court,” and had consequently allowed perpetrators of domestic violence to “escape criminal prosecution whenever the victim s[ought] civil redress” (id. at 23). The 1994 Act further established “a true concurrent jurisdictional provision, enabling the petitioner to proceed simultaneously in both forums (without precluding the election of only one tribunal)” (Sobie, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 29A, Family Ct Act § 812, at 224 [2010]).
In 1999, the Legislature clarified the concurrent jurisdiction of the Family Court and criminal court with respect to family offenses when it amended
By enacting a true concurrent jurisdiction provision, the 1994 and 1999 amendments strengthened the remedies available to domestic violence victims. As with the major amendments enacted by the Legislature in 1977 and 1978, there is no evidence of any legislative intent to lessen the subject matter juris-
In view of the foregoing discussion of the history of
As discussed above, the Family Court and the criminal court have concurrent jurisdiction over family offenses. However, a question that arises is whether the geographic or territorial limitation on the jurisdiction of the criminal court (see generally People v McLaughlin, 80 NY2d 466, 471 [1992] [stating that “for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State“]) also limits the jurisdiction of the Family Court.
The Family Court is not a criminal court. Whereas the criminal court‘s subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court. Although the phrase “concurrent jurisdiction” is left undefined in the Family Court Act, the Criminal Procedure Law, and the CPLR, that phrase has been defined as “[j]urisdiction that might be exercised simultaneously by more than one court over the same subject matter and within the same territory, a litigant having the right to choose the court in which to file the action” (Black‘s Law Dictionary 928 [9th ed 2009]). Neither
It should be noted that our decision is generally consistent with various decisions of the Family Court (see E.H. v D.B., NYLJ, Aug. 8, 2008, at 28, col 1 [Fam Ct, NY County] [holding that Family Court had jurisdiction over family offense proceeding where alleged acts occurred in the Commonwealth of Pennsylvania]; Matter of Eileen W. v Mario A., 169 Misc 2d 484 [Fam Ct, NY County 1996] [holding that Family Court had jurisdiction over family offense proceeding where alleged act occurred in the State of New Jersey]; Matter of Pierson v Pierson, 147 Misc 2d 209 [Fam Ct, Monroe County 1990] [holding that Family Court had jurisdiction over family offense proceeding where alleged acts occurred in the State of Florida]; but see J.A. v J.C., NYLJ, June 25, 2001, at 32, col 6 [declining to find subject matter jurisdiction where alleged family offenses occurred in Commonwealth of Massachusetts and where there were no further threats or suggestion of future contact between parties]). However, to the extent that the above-cited cases rely upon a “minimum contacts analysis” or suggest that a residual injury within this state is necessary in order to confer subject matter jurisdiction upon the Family Court pursuant to New York‘s long-arm statute (see
Accordingly, considering the plain meaning of
The appellant further argues that the Family Court erred in dismissing her petitions and that the orders of protection which, in effect, excluded her from her home for a period of two years, were unreasonable and punitive. She argues that a limited order of protection would have restored the status quo and returned her to her home.
The Family Court properly dismissed the appellant‘s petitions. Although the three orders which dismissed the appellant‘s petitions stated the dismissals were due to the appellant‘s “failure to state a cause of action,” those orders also provided that the Family Court dismissed the appellant‘s petitions following “an examination and inquiry into the facts and circumstances of the case, and after hearing the proofs and testimony offered in relation thereto.” Therefore, contrary to the appellant‘s contentions, the Family Court was not required, inter alia, to accept the appellant‘s allegations as true and determine whether the facts, as alleged, fit into a cognizable cause of action (cf. Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Matter of Ramroop v Ramsagar, 74 AD3d 1208 [2010] [Family Court failed to apply proper standard to respondent‘s motion to dismiss article 8 proceeding for failure to establish a prima facie case]).
The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and
Moreover, the Family Court did not improvidently exercise its discretion in entering the three orders of protection, to remain in effect up to and including June 23, 2011, directing the appellant to, inter alia, stay away from the respondents (see
Finally, the appellant maintains that the Family Court‘s comments and rulings during the hearing demonstrated its partiality in favor of the respondents and bias against her, as well as an adversarial attitude. However, there is no evidence that the Family Court was biased against the appellant and thereby deprived her of a fair hearing (see Matter of Jeannie B. v Roger D., 33 AD3d 994 [2006]; Matter of Grossman v Grossman, 238 AD2d 339 [1997]; Matter of Murdock v Murdock, 183 AD2d 769 [1992]; cf. Matter of Carlos P., 12 AD3d 679 [2004]; Matter of Muller v Muller, 221 AD2d 635, 637 [1995]). Furthermore, the record does not support the appellant‘s contention that the Family Court displayed an adversarial attitude toward her.
Accordingly, the orders of protection and the orders of dismissal are affirmed.
Covello, J.P., Angiolillo and Sgroi, JJ., concur.
Ordered that the orders of protection and the orders of dismissal are affirmed, without costs or disbursements.