Di Donna v. Di Donna

Decision Date16 November 1972
Citation72 Misc.2d 231,339 N.Y.S.2d 592
CourtNew York Family Court
PartiesMary Catherine DI DONNA, Petitioner, v. Louis A. DI DONNA, Respondent.

Kadel, Wilson & Potts, New York City, for petitioner; John J. Hallissey, Jr., New York City, of counsel.

Charles J. Saccoman, Kingston, for respondent.

HUGH R. ELWYN, Judge:

By petition and order to show cause the petitioner on behalf of herself and her two teenage daughters brings a family offense proceeding pursuant to Article 8 of the Family Court Act in which she seeks an order of protection to prevent her estranged husband's 'continued and incessant harassment, menacing and reckless conduct.'

The gravamen of her petition which is buttressed by an affidavit of the parties' two daughters is that her husband refuses to accept the fact that their marriage is no longer viable and that in his misguided efforts to preserve the marriage he has abused his parental relationship with their children by discussing with the children ad nauseam the break up of the marriage and the impending divorce to the point where the children are made to feel guilty and responsible for the break up of the marriage.

In support of these allegations the wife and the two daughters testified to numerous instances since the separation when the respondent sought the company of his daughters both at home and abroad and during their hours of relaxation and athletic activities, all to the daughters' mounting vexation and annoyance. The daughters, Mara and Deidre, who are completely under the control of their mother, find their father's inordinate interest in them and their activities tiresome and offensive; they complain that in his efforts to save and preserve his marriage that he plays upon their sympathies, distorts their conversations, criticizes their activities and endeavors, tearing at their self confidence; has intimated that there will be less material benefits if there is a divorce, and, in short, has made them feel a sense of guilt over their parents' separation. As a consequence, the two daughters have come to resent what they see as an effort on the part of their father to use them as an instrument or a means of bringing pressure upon their mother to effect a reconciliation with their father.

The respondent did not offer any testimony to controvert any of the petitioner's proof but, rather at the close of the petitioner's case, moved to dismiss for failure to prove facts sufficient to constitute the violation of harassment or to entitle her to any relief. The motion was based primarily on two ground: (1) that the acts proven at the trial, even if believed, were not acts done by the respondent 'with intent to harass, annoy or alarm another person' and (2) that assuming the truthfulness of the petitioner's testimony that the conduct complained of was not acts 'which serve no legitimate purpose.'

The respondent, of course, does not agree with the construction put upon his conduct by his wife and daughters, but asserts that in all his contacts with his family since the separation, whether personally or by telephone, that he has done nothing inconsistent with the proper exercise or beyond the scope of his inherent right as a parent to influence and control his daughters' upbringing and conduct. In contrast to the wife, who apparently does not regard her religion as presenting any barrier to divorce, the respondent by religious conviction regards his marriage as indissoluble for any reason whatever and is adamantly opposed to divorce. In defense of his efforts to save and preserve his marriage the respondent points out that while the divorce laws of this state have recently been liberalized to the point where they virtually permit divorce by consent, the public policy of this state has not gone so far as to regard divorce as a Desirable social policy. Consequently, he feels justified in resorting to any legitimate means to persuade his wife and children that divorce is not in the Family's best interest.

In short, the respondent's position is that his prerogatives as a parent remain undiluted and undiminished by the parties' separation by mutual consent; that to the extent he may have discussed his estrangement with his wife and the impending divorce with his children he has been motivated solely by a desire to save his marriage, and that, in any event, his conduct does not, as a matter of law, constitute harassment.

Although the petitioner seeks protection from what she in her petition characterizes as the respondent's 'incessant harassment, menacing and reckless conduct', there was no proof whatsoever that would sustain a charge of 'menacing' or 'reckless endangerment' as those crimes are defined in the Penal Law (Penal Law § 120.15 and §§ 120.20, 120.25). Nor is the petitioner's proof sufficient to sustain a finding 'by a fair preponderance of the evidence' (Family Court Act § 832) that the respondent has committed acts which would constitute the violation of 'harassment' as that offense is defined in the Penal Law (Penal Law § 240.25).

There was no proof whatever that the respondent committed any of the acts described in any of subdivisions 1--4 of section 240.25 of the Penal Law, any one of which may constitute harassment. The only possible subdivision of sect. 240.25 that the respondent may conceivably have violated is subd. 5 which states: 'He engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.'

The violation of harassment requires proof of an Intent to harass, annoy or alarm (Penal Law § 240.25; People v. Moyer, 27 N.Y.2d 252, 253, 317 N.Y.S.2d 9, 10, 265 N.E.2d 535, 536). The petitioner's proof is insufficient to establish that respondent by his conduct Intended to harass, annoy or alarm his daughters; rather, his intent, so far as it is possible to ascertain the same, seems to have been to attempt to maintain, as nearly as possible under the circumstances, a normal father-daughter relationship with his two daughters and to prevent his marriage from completely disintegrating.

Moreover, even if the petitioner's daughters were 'alarm(ed)' by their father's conduct, his course of conduct as described by them was not such as would 'serve no legitimate purpose'. On the contrary, his course of conduct appears to have been motivated by concern for his family and the welfare of his daughters and could conceivably serve several very legitimate purposes . . . the maintenance of a normal father-daughter relationship, a reconciliation with his family, the preservation of his marriage and the insurance of his own mental and emotional health to name a few. In sum, the petitioner's proof falls far short of establishing the violation of harassment as that offense is defined in section 240.25 of the Penal Law.

The petitioner, however, takes the position that in order for the Court to take jurisdiction in this matter that it is not necessary for the Court to make a finding that the respondent acted with Intent to harass, annoy or alarm his daughters, but that it is sufficient to invoke the Court's jurisdiction if the Court finds the respondent's conduct by some undefined standard 'offensive'. It is true, of course, that Article 8 of the Family Court Act is entitled 'Family Offenses Proceedings' and that among the authorized dispositions of a Family Offense Proceeding is the issuance of an order of protection in accordance with section 842 of the Family Court Act requiring a respondent to abstain from Offensive conduct. However, the euphemism, 'family offense' is nowhere specifically defined in the Family Court Act, except by implication from the listing of the types of acts over which the Family Court is by statute given exclusive original jurisdiction. Section 812 of the Family Court Act vests the Court with exclusive original jurisdiction 'over any proceeding concerning acts which would constitute disorderly conduct, harassment, menacing, reckless endangerment, an assault or an attempt assault between spouses or between parent and child or between members of the same family or household. For the purposes of this article, 'disorderly conduct' includes disorderly conduct not in a public place'.

In support of the novel proposition that the Family Court has jurisdiction over not only those acts which would constitute disorderly conduct, harassment, menacing, reckless endangerment and assault or an attempted assault as those crimes or violations are defined in the penal law, but also over acts which the petitioner finds 'offensive', the petitioner cites the dicta of Judge Midonick in Matter of Ruth 'S' v. George 'S', 63 Misc.2d 1, pp. 6--7, 10 and 12, 311...

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  • Eileen W. v. Mario A.
    • United States
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    • 8 de maio de 1996
    ......Finocchiaro, 192 A.D.2d 1089, 598 N.Y.S.2d 754; Matter of Jones v. Roper, 187 A.D.2d 593, 591 N.Y.S.2d 336; Di Donna v. Di Donna, 72 Misc.2d 231, 339 N.Y.S.2d 592; Roofeh v. Roofeh, 138 Misc.2d 889, 525 N.Y.S.2d 765).         There is no indication, ......
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