Nadeau v. Sullivan
| Decision Date | 26 May 1994 |
| Citation | 204 A.D.2d 913,612 N.Y.S.2d 501 |
| Parties | In the Matter of Gary NADEAU, Respondent, v. Carmen SULLIVAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
R. Burr Hubbell, Margaretville, for appellant.
Gary Nadeau, Grand Gorge, respondent in person.
Before CARDONA, P.J., and MERCURE, WHITE, WEISS and YESAWICH, JJ.
Appeal from an order of the Family Court of Delaware County (Estes, J.), entered April 8, 1992, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 8, to find respondent in violation of a temporary order of protection.
On February 2, 1992, petitioner filed a petition in Family Court alleging that respondent, his 18-year-old stepson, had engaged in harassing, menacing and assaultive behavior toward him. Family Court issued a temporary order of protection, directing respondent to refrain from engaging in any such activities or disorderly conduct, and to stay away from those portions of the Hitching Post Inn (hereinafter the Inn)--an establishment owned by petitioner, at which respondent resides --used for business and commercial purposes.
Shortly thereafter, petitioner filed a second petition, charging that respondent had violated the order of protection by throwing a string of exploding firecrackers from a window over petitioner's head while the latter was sorting bottles on a delivery ramp at the Inn. After a hearing, Family Court found that respondent had willfully violated the order of protection and ordered him to serve 30 days in the County Jail. Respondent appeals from this order, which was stayed pending appeal.
Preliminarily, it is necessary to consider respondent's contention that Family Court does not have jurisdiction over these matters, involving, as they do, the claimed assault and harassment of a stepfather by his stepson. Resolution of this issue turns on whether petitioner and respondent, who do not share the same living quarters, may be considered "members of the same family or household", as that term is used in the Family Court Act (Family Ct. Act § 812[1]. Although in several early cases this limitation was quite narrowly defined (see, People v. Williams, 24 N.Y.2d 274, 300 N.Y.S.2d 89, 248 N.E.2d 8; Klemes v. Sohnen, 32 A.D.2d 935, 303 N.Y.S.2d 533; People v. Weisman, 72 Misc.2d 465, 339 N.Y.S.2d 482), the Legislature has, in the interim, added to the statute a definition of "family or household" which includes "persons related by consanguinity or affinity" (Family Ct Act § 812[1][a], and has twice amended that definition to broaden its reach (see, Besharov, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, Family Ct.Act § 812, at 136). As a result, the statute now clearly encompasses the relationship between petitioner and respondent, which is one by affinity and of the first degree (see, Black's Law Dictionary 59 [6th ed 1990]; see also, Besharov, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, Family Ct.Act § 812, at 138-139).
We reject also respondent's argument that, by granting a temporary order of protection without first holding a fact-finding hearing, Family Court violated his right to due process of...
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