Jessica D. v. Jeremy H.

• Decision Date: 24 June 2010
• Citation: 77 A.D.3d 87,906 N.Y.S.2d 119
• Parties: In the Matter of JESSICA D., Appellant, v. JEREMY H., Respondent.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 119

77 A.D.3d 87

In the Matter of JESSICA D., Appellant,

v.JEREMY H., Respondent.

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

June 24, 2010.

Lisa A. Burgess, Indian Lake, for appellant.

Tracey A. Donovan Laughlin, Cherry Valley, for respondent.

Before: CARDONA, P.J., MERCURE, SPAIN, KAVANAGH and GARRY, JJ.

MERCURE, J.

Appeal from an order of the Family Court of Madison County(McDermott, J.), entered April 24, 2009, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 8, for an order of protection.

The question that we must answer on this appeal is whether Family Court has jurisdiction to entertain an application for an order of protection made by a married woman, who lives with her husband, against a boyfriend with whom she has an intermittent sexual relationship.We hold that it was the intent of the Legislature to include "boyfriend/girlfriend" relationships within the plain terms of the recently revised Family Ct. Act § 812(1)(e) and, accordingly, Family Court should not have dismissed the petition on public policy grounds.

Petitioner, who resided with her husband and six-year-old daughter, filed a family offense petition against respondent in January 2009 alleging harassment and aggravated harassment.Petitioner testified that respondent was her boyfriend until he became violent and she ended their most recent involvement-a sexual relationship lasting approximately 10 days.Petitioner alleged that respondent struck her leg and threatened to kill her and her husband by shooting them, causing her to be concerned for her safety and the safety of her husband and daughter.Family Court initially issued a temporary order of protection in petitioner's favor.Subsequently, the court granted respondent's motion to dismiss the petition for lack of jurisdiction, but left the temporary order of protection in effect "for a reasonable period of time" to allow petitioner to seek an order of protection in criminal court.Family Court determined that the parties' relationship met "the statutory standard of intimacy"(24 Misc.3d 664, 666, 878 N.Y.S.2d 578[2009] ), but refused to entertain the petition "for reasons of public policy"( id.).Petitioner now appeals.

The question of whether Family Court has jurisdiction turns on the nature of the parties' relationship.If that relationship is an "intimate relationship" within the meaning of Family Ct. Act § 812(1)(e), the court has jurisdiction.Pursuant to Family Ct. Act § 812(1), "[t]he family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerningacts which would constitute [certain enumerated crimes, including harassment and aggravated harassment] ... between members of the same family or household."In 2008, the definition of "members of the same family or household" was radically expanded to include individuals "who are or have been in an intimate relationship regardless of whether such persons have lived together at any time"(Family Ct. Act § 812[1][e], as added by L. 2008, ch. 326, § 7;seeSobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act§ 812, at 227-230).Although the term "intimate relationship" is not defined, the statute provides factors to be considered in determining whether such a relationship exists, including but "not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship.Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an 'intimate relationship' "(Family Ct. Act § 812[1][e] ).

Here, as Family Court aptly described it, the parties have "an 'on-again, off-again' relationship.It appears that when the petitioner grows weary of her husband, which seems to occur with some frequency,she rekindles her relationship with the respondent.Eventually, she either tires of him or finds renewed interest in her husband (or both), and a new cycle begins"(24 Misc.3d at 666, 878 N.Y.S.2d 578).The court dismissed the petition as violative of public policy, noting the state's abiding interest in preserving the marital relationship ( seeHernandez v. Robles,7 N.Y.3d 338, 367, 821 N.Y.S.2d 770, 855 N.E.2d 1[2006][Graffeo, J., concurring] ), that a family offense proceeding is defined as a "civil proceeding [that] is for the purpose of attempting to stop the violence, end the family disruption and obtain protection"(Family Ct. Act § 812[2][b][emphasis added] ), and that-while she might prefer to proceed in Family Court-petitioner has the ability to pursue an order of protection in criminal court(24 Misc.3d at 666-667, 878 N.Y.S.2d 578).

While acknowledging Family Court's policy concerns, it remains "fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature," as expressed by the statute's text ( Majewski v. Broadalbin-Perth Cent. School Dist.,91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978[1998][internal quotation marks and citation omitted] ).Because the Legislature declined to include a definition of the term "intimate relationship" inFamily Ct. Act § 812(1)(e), "courts should construe the term using its usual and commonly understood meaning"( Orens v. Novello,99 N.Y.2d 180, 185-186, 753 N.Y.S.2d 427, 783 N.E.2d 492[2002][internal quotation marks and citations omitted];seeMajewski v. Broadalbin-Perth Cent. School Dist.,91 N.Y.2d at 583, 673 N.Y.S.2d 966, 696 N.E.2d 978).Here, the parties and Family Court agreed that the parties, who have an intermittent sexual relationship and periodically live together, "are or have been in an intimate relationship"(Family Ct. Act § 812[1][e] ).As such, the parties' relationship fits within the plain terms of the revised section 812(1)(e).Indeed, the legislative history of the amendment adding subdivision (1)(e) indicates that the Legislature intended to extend the statute's reach to just these types of relationships-"(1) unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household and (2) persons who are or have been in an intimate or dating relationship regardless of whether such persons have lived together at any time"(Letter from Assembly Sponsor, July 15, 2008, Bill Jacket, L. 2008, ch. 326, at 9;seeSenate Introducer Mem. in Support, Bill Jacket, L. 2008, ch. 326, at 10-11;18 NYCRR 452.2[g][2][v], [vi];cf.Matter of Seye v. Lamar,72 A.D.3d 975, 977, 900 N.Y.S.2d 112[2010];Matter of Rollerson v. New,28 Misc.3d 663, ----, 901 N.Y.S.2d 515[20...