Marquardt v. Marquardt

• Decision Date: 06 July 2012
• Citation: 948 N.Y.S.2d 484,97 A.D.3d 1112,2012 N.Y. Slip Op. 05457
• Parties: In the Matter of Paul D. MARQUARDT, Petitioner–Respondent, v. Ursula M. MARQUARDT, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 1112

948 N.Y.S.2d 484

2012 N.Y. Slip Op. 05457

In the Matter of Paul D. MARQUARDT, Petitioner–Respondent,

v.Ursula M. MARQUARDT, Respondent–Appellant.

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

July 6, 2012.

Charles J. Greenberg, Buffalo, for Respondent–Appellant.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

Respondent wife appeals from an “Order of Fact–Finding and Disposition” in which Family Court concluded that she committed acts constituting the family offense of harassment in the first or second degree against petitioner husband (Family Ct. Act § 812[1]; Penal Law §§ 240.25, 240.26[3] ). Initially, we note that the order of protection issued in conjunction with the order on appeal has expired, and we thus generally would dismiss the appeal as moot ( see Matter of Kristine Z. v. Anthony C., 43 A.D.3d 1284, 1284–1285, 845 N.Y.S.2d 581,lv. denied10 N.Y.3d 705, 857 N.Y.S.2d 37, 886 N.E.2d 802). Here, however, respondent challenges only Family Court's finding that she committed a family offense and, “ ‘in light of enduring consequences which may potentially flow from an adjudication that a party has committed a family offense,’ the appeal from so much of the order ... as made that adjudication is not academic” (Matter of Hunt v. Hunt, 51 A.D.3d 924, 925, 858 N.Y.S.2d 724).

With respect to the merits, the court concluded that respondent committed a family offense by engaging in acts that would constitute either first or second degree harassment “by cutting open [her] pills on the counter, knowing that the Petitioner has allergies” to medications. We agree with respondent that the evidence is not legally sufficient to establish that she committed a family offense. “A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense” (Matter of Chadwick F. v. Hilda G., 77 A.D.3d 1093, 1093–1094, 909 N.Y.S.2d 577,lv. denied16 N.Y.3d 703, 2011 WL 446450). Although harassment in the first or second degree is a family offense ( seeFamily Ct. Act § 812[1] ), and we afford great deference to the court's determination of credibility ( see Matter of Gray v. Gray, 55 A.D.3d 909, 909, 867 N.Y.S.2d 110;Matter of Wallace v. Wallace, 45 A.D.3d 599, 844 N.Y.S.2d 711), we conclude that petitioner failed to establish by a preponderance of the evidence that respondent engaged in acts constituting either offense. Thus, the court erred in failing to dismiss the amended petition ( see generally Matter of Woodruff v. Rogers, 50 A.D.3d 1571, 1571–1572, 857 N.Y.S.2d 832,lv. denied10 N.Y.3d 717, 862 N.Y.S.2d 469, 892 N.E.2d 863).

To establish that respondent committed acts constituting harassment in the second degree, petitioner was required to establishthat respondent engaged in conduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed or seriously annoyed by the conduct, and that the conduct served no legitimate purpose ( seePenal Law § 240.26[3]; Matter of Ebony J. v. Clarence D., 46 A.D.3d 309, 847 N.Y.S.2d 523;Matter of Cavanaugh v. Madden, 298 A.D.2d 390, 392, 751 N.Y.S.2d 225). Even assuming, arguendo, that petitioner was alarmed or seriously annoyed by the conduct of respondent in opening her medicine to eat it with pudding based on her inability to swallow the pills, and further assuming, arguendo, that respondent thereby intended to harass, annoy or alarm him, we conclude that petitioner failed to establish that the conduct served no legitimate purpose ( see generally Chadwick F., 77 A.D.3d at 1094, 909 N.Y.S.2d 577;Matter of Charles E. v. Frank E., 72 A.D.3d 1439, 1441, 899 N.Y.S.2d 464;Matter of Eck v. Eck, 44 A.D.3d 1168, 1169, 844 N.Y.S.2d 460,lv. denied9 N.Y.3d 818, 851 N.Y.S.2d 390, 881 N.E.2d 839). Indeed, petitioner testified that respondent took the medication as prescribed to prevent acid reflux, and that respondent opened the pills and ate the medication with food because she was unable to swallow the pills. With respect to petitioner's allegation that he was allergic to certain medications, he failed to establish that he was allergic to the particular medication taken by respondent, or to introduce any expert evidence in support of his testimony that the medication was “a poison, a toxic poison that causes death.”

Similarly, petitioner failed to establish that respondent's acts constituted harassment in the first degree. That statute requires, inter alia, that the perpetrator commit “acts which place[another person] in reasonable fear of physical injury” (Penal Law § 240.25). Even assuming, arguendo, that petitioner was in fear of physical injury when respondent opened her medication, we conclude for the reasons set forth above that he failed to establish that his fear was reasonable.

It is hereby ORDERED that the order insofar as appealed from is reversed on the law without costs and the amended petition is dismissed.

All concur except MARTOCHE, J., who dissents and votes to affirm in the following Memorandum:

I respectfully dissent, and would affirm the order insofar as appealed from. In my view, petitioner husband established by a preponderance of the evidence that respondent wife committed a family offense, and I agree with the majority that Family Court's finding that she did so is not academic despite the fact that the underlying order of protection has expired ( see Matter of Hunt v. Hunt, 51 A.D.3d 924, 925, 858 N.Y.S.2d 724). Preliminarily, I note that, in this proceeding, respondent filed an amended petition in which she accused petitioner of engaging in acts against her that constituted disorderly conduct, harassment, aggravated harassment and attempted assault. The relevant acts included one incident in which petitioner screamed at respondent and ripped apart her rosary beads, and a second incident when, while calling respondent names, petitioner struck respondent with a door upon opening it and then tried to rip the door off its hinges. Petitioner in turn filed an amended family offense petition against respondent, alleging that she committed the family offenses of reckless endangerment, harassment and menacing. Specifically, petitioner alleged that on several occasions respondent opened capsules of controlled substances in his presence on eating surfaces in the kitchen even though he had informed her that he was allergic to the controlled substances. Petitioner further alleged that, despite his repeated protests, respondent continued to open the capsules in his presence. The court...