Molloy v. Molloy

• Decision Date: 20 January 2016
• Docket Number: Docket No. O-3023-10.,2014-07966
• Citation: 2016 N.Y. Slip Op. 00366,24 N.Y.S.3d 333,137 A.D.3d 47
• Parties: In the Matter of Jennifer MOLLOY, appellant, v. William MOLLOY, respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 47

24 N.Y.S.3d 333

2016 N.Y. Slip Op. 00366

In the Matter of Jennifer MOLLOY, appellant,

v.William MOLLOY, respondent.

2014-07966

Docket No. O-3023-10.

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

Jan. 20, 2016.

Stephanie Taylor, Jamaica, N.Y. (Brian Dworkin of counsel), for appellant.

CHAMBERS, J.

This case presents an opportunity to consider the meaning of “ good cause” to extend an order of protection pursuant to Family Court Act § 842.

I.

The petitioner and the respondent were married in May 2002, and are the parents of one child. In February 2010, the petitioner filed a family offense petition against the respondent. Following a hearing, the Family Court found that the respondent committed the family offenses of menacing in the third degree, reckless endangerment in the second degree, and assault in the third degree, and issued a two-year order of protection in favor of the petitioner and the parties' child. The order required the respondent to stay away from the petitioner, the child, their home, and the child's school, except for agreed-upon or court-ordered visitation. It further directed the respondent to refrain from committing assault, stalking, harassment, menacing, reckless endangerment, and certain other offenses against the petitioner and the child.

As the expiration date of the order of protection approached, the petitioner moved to extend it for five years, arguing that there was “good cause” for the extension, citing Family Court Act § 842. In her supporting affidavit, the petitioner alleged that the respondent had violated the order of protection by, for example, showing up at her apartment and banging on the door, and driving his vehicle too closely to the petitioner, a wheelchair user, while she was on her way to a police station for a custody exchange. Fearing for her safety, she reported some of these incidents to the police, as documented in three New York City Police Department Domestic Incident Reports she submitted in support of her motion. She alleged that he had recently been arrested for violating the order of protection, and that the case was pending in the Criminal Court of the City of New York, Queens County. The petitioner also claimed that the respondent's girlfriend warned her that the respondent said that when the petitioner's order of protection expired he would return to her residence, and he threatened to kill her.

The petitioner also noted that because she and the respondent have a child in common they have to frequently interact regarding the child's visitation. The petitioner claimed that the respondent's conduct during the course of their interactions over the past several years had so terrified her that she carried a panic alarm whenever she left her home. She feared that once the order of protection expired the respondent would begin harassing her again and might harm or kill her.

The respondent opposed the petitioner's motion. At the request of the Family Court he submitted, inter alia, a certificate of disposition and transcript from the Criminal Court of the City of New York, Queens County, both dated February 24, 2014, which indicated that he had pleaded guilty to a reduced charge of disorderly conduct. As a part of that disposition, a two-year order of protection was granted in favor of the petitioner and against him “subject to any subsequent orders from Family Court regarding visitation and custody.”

The Family Court denied the petitioner's motion to extend the Family Court order of protection, holding that because the petitioner had already been granted a two-year order of protection in Criminal Court, the goal behind Family Court Act § 842 was accomplished and, thus, the petitioner had not demonstrated good cause to extend the order of protection.

II.

Initially, the expiration of the order of protection by its own terms does not render this appeal academic, because the issue on appeal is whether the Family Court erred in declining to extend the order of protection beyond that expiration date (see Matter of Leon v. Landaverde, 121 A.D.3d 898, 899, 994 N.Y.S.2d 374; Matter of Margary v. Martinez, 118 A.D.3d 1004, 1005–1006, 989 N.Y.S.2d 78; Matter of V.C. v. H.C., 257 A.D.2d 27, 32–33, 689 N.Y.S.2d 447). The petitioner is seeking to extend the order of protection for five years, to December 1, 2018, which, if granted, would directly affect the parties' rights going forward (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876; Matter of Margary v. Martinez, 118 A.D.3d at 1005–1006, 989 N.Y.S.2d 78).

Next, contrary to the Family Court's conclusion, the Criminal Court's issuance of an order of protection did not negate or otherwise render superfluous the petitioner's request for an extension of her Family Court order of protection. A victim of domestic violence may “commence a proceeding in either or both Family Court and Criminal Court” and “[e]ach court has the authority to issue temporary or final orders of protection” (People v. Wood, 95 N.Y.2d 509, 512–513, 719 N.Y.S.2d 639, 742 N.E.2d 114; see Matter of Alfeo v. Alfeo, 306 A.D.2d 471, 761 N.Y.S.2d 505). Therefore, the Criminal Court's issuance of an order of protection did not preclude the Family Court from extending the order of protection it had previously issued (see Matter of Alfeo v. Alfeo, 306 A.D.2d at 471, 761 N.Y.S.2d 505). Moreover, had the respondent successfully appealed the criminal matter, the Criminal Court's order of protection would have been vacated. Thus, it was entirely proper for the petitioner to seek an extension of the Family Court order of protection.

Section 842 of the Family Court Act provides, in pertinent part, that a court “may ..., upon motion, extend [an] order of protection for a reasonable period of time upon a showing of good cause or consent of the parties.” The critical issue before us is whether the petitioner established “good cause” to extend the duration of the order of protection, as that term is applied in Family Court Act § 842. We approach this issue by first considering the legislative history of that section. When the Family Court Act was first enacted in 1962, it included provisions giving the Family Court the authority to enter an order of protection with certain reasonable conditions of behavior (see L. 1962, ch. 686, at 2315–2316). Initially, however, the Family Court did not have the authority to extend an order of protection. It was not until 1972 that the Legislature gave the Family Court the discretion to extend an order of protection “upon the showing of special circumstances” (L. 1972, ch. 761, § 1 at 2435). The term “special circumstances” was not defined in the statute, and case law did not develop or elucidate its meaning (see Matter of Waldman v. Waldman, 47 A.D.3d 637, 638, 849 N.Y.S.2d 590; Matter of J.R.W. v. L.F.W., 7 Misc.3d 1015[A], 2005 N.Y. Slip Op. 50612[U], 2005 WL 954853 [Fam.Ct., Nassau County]; Matter of J.G. v. B.G., NYLJ, Nov. 18, 1999 at 36, col. 3 [Fam.Ct., Nassau County, Lawrence, J.]; Mem. of Office for the Prevention of Domestic Violence, Bill Jacket, L. 2010, ch. 325 at 21; Empire Justice Center Mem. in Support, L. 2010, ch. 325 at 78). Notably, victims were “frequently discouraged from applying for an extension” and, in fact, “rarely pursued” one (Mem. of Assembly Judiciary Committee, Bill Jacket, L. 2010, ch. 325 at 5). Instead, they waited “until the recurrence of an incident of abuse to apply for a new order of protection” (id.).

As a consequence, domestic violence advocacy groups sought relief from the Legislature. This was the situation the Legislature sought to remedy in 2010 when it amended section 842. The Legislature recognized that victims should not have to wait for the commission of another family offense before seeking an extension (see Assembly Mem. in Support, Bill Jacket, L. 2010, ch. 325 at 8). Thus, the new amendment lowered the standard by permitting the Family Court to extend an order of protection upon a showing of “good cause” rather than “special circumstances” (Mem. of Assembly Judiciary Committee, Bill Jacket, L. 2010, ch. 325 at 5).

The Legislature did not define “good cause” in the statute, but it declared that “[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order” (Family Ct. Act § 842). In addition, the Legislature intended, as reflected in the bill jacket, that petitioners might “apply for extensions for various reasons to ensure their safety” (Assembly Mem. in Support, Bill Jacket, L. 2010, ch. 325 at 9). Underscoring this point, the Legislature cited as examples that “the existing court order may have worked in preventing domestic abuse, and/or there are circumstances that may cause the parties to interact. Such interaction may be as a result of pending litigation, the initiation of litigation, compliance with the terms of divorce or family court agreements or judgments, meeting the needs of children in common including following visitation orders, or the resurfacing of the respondent for one reason or another, including release from prison to name a few” (id.). In each case, a “request for an extension should be viewed in the context of the facts of the case, including present circumstances, past abuse by the respondent, threats of abuse by the respondent and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse” (id.). As such, the legislative history makes plain the Legislature's intent to afford greater protection to victims of domestic violence by permitting them to obtain an extension of an existing order of protection to prevent a reoccurrence of domestic abuse upon a showing of “good cause” (see Assembly Mem. in Support, Bill Jacket, L. 2010, ch. 325 at 8). We...