Daniels v. Davis

• Decision Date: 10 June 2016
• Citation: 34 N.Y.S.3d 287,140 A.D.3d 1688,2016 N.Y. Slip Op. 04593
• Parties: In the Matter of Trisha M. DANIELS, Petitioner–Respondent, v. Justin M. DAVIS, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1688

34 N.Y.S.3d 287

2016 N.Y. Slip Op. 04593

In the Matter of Trisha M. DANIELS, Petitioner–Respondent,

v.Justin M. DAVIS, Respondent–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 10, 2016.

Timothy P. Donaher, Public Defender, Rochester (Janet Somes of Counsel), Pro Bono Appeals Program, Albany, for Respondent–Appellant.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.

MEMORANDUM:

In this proceeding brought pursuant to Family Court Act article 8, respondent appeals from an order of protection requiring him, inter alia, to refrain from offensive conduct toward petitioner and granting petitioner temporary custody of the parties' three children subject to defined visitation by respondent. We agree with respondent that the appeal has not been rendered moot by the expiration of the order of protection, which “still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision” (matter of veronica P. V. RAdcliff a., 24 n.y.3D 668, 671, 3 N.y.s.3d 288, 26 N.E.3d 1143 ; see Matter of Shephard v. Ray, 137 A.D.3d 1715, 1716, 28 N.Y.S.3d 211 ). We further agree with respondent that Family Court erred in disposing of the matter on the basis of respondent's purported default. As we have repeatedly held, a respondent who fails to appear personally in a matter but nonetheless is represented by counsel who is present when the case is called is not in default in that matter (see Matter of Manning v. Sobotka, 107 A.D.3d 1638, 1638–1639, 969 N.Y.S.2d 627 ; Matter of Erie County Dept. of Social Servs. v. Thompson, 91 A.D.3d 1327, 1328, 937 N.Y.S.2d 658 ; Matter of Cleveland W., 256 A.D.2d 1151, 1151–1152, 684 N.Y.S.2d 121 ).

Finally, we conclude that petitioner failed to establish by a fair preponderance of the evidence that respondent committed the family offense of harassment in the second degree (Penal Law § 240.26[1], [3] ; see Family Ct. Act § 832 ; Shephard, 137 A.D.3d at 1716, 28 N.Y.S.3d 211 ). In this non-default posture, the brief colloquy between the court and petitioner, who merely “re-verif[ied]” the allegations of the petition, was insufficient to establish respondent's commission of the family offense. Here, the hearing record contains no evidence concerning the content of the telephone calls made and the texts sent by respondent in the context of the parties' custody/visitation dispute, and thus there is no...