Orellana v. Escalante

• Decision Date: 07 February 1997
• Citation: 653 N.Y.S.2d 992,228 A.D.2d 63
• Parties: Matter of Susan D. ORELLANA, Respondent, v. Mario A. ESCALANTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 992

653 N.Y.S.2d 992

228 A.D.2d 63

Matter of Susan D. ORELLANA, Respondent, v. Mario A. ESCALANTE, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 7, 1997.

Crimi and Crimi (Joseph Crimi, of counsel), Rochester, for appellant.

Monroe County Public Defender's Office (Kathleen J. Gray, of counsel), Rochester, for respondent.

Before DENMAN, P.J., and GREEN, PINE, CALLAHAN and BOEHM, JJ.

GREEN, Justice:

Petitioner commenced this proceeding pursuant to article 8 of the Family Court Act, seeking an order of protection against respondent, her former stepfather. Petitioner alleged in her petition that respondent committed acts that would constitute harassment in the first degree (see, Penal Law § 240.25). At the fact-finding hearing, petitioner testified that respondent had stalked her on several occasions in the spring of 1995. Petitioner further testified that respondent had been convicted of raping her in 1985, the year respondent and petitioner's mother were divorced. At the time of the rape, petitioner was 11 years old.

Upon finding that respondent committed a family offense (see, Family Ct. Act § 812[1] ) and that aggravating circumstances existed (see, Family Ct. Act § 827[a][vii] ), Family Court granted an order of protection for a period of three years (see, Family Ct. Act § 842). The sole issue before us is whether the court had jurisdiction to grant that relief. We hold that, because the parties are not "members of the same family or household" as that term is defined in section 812(1) of the Family Court Act, the court lacked subject matter jurisdiction over this proceeding.

Family Court is a court of limited jurisdiction (see, N.Y. Const., art. VI, § 13). Its jurisdiction over family offense proceedings, which it shares with the criminal courts, extends to certain forms of criminal conduct "between spouses or former spouses, or between parent and child or between members of the same family or household" (Family Ct. Act § 812[1]; see, CPL 530.11[1] ). Because the parties are not spouses, former spouses or parent and child, the court had jurisdiction only if petitioner and respondent are "members of the same family or household." The statute defines that term as:

"(a) persons related by consanguinity or affinity;

(b) persons legally married to one another;

(c) persons formerly married to one another; and

(d) persons who have a child in common regardless whether such persons have been married or have lived together at any time"

(Family Ct. Act § 812[1]; see, CPL 530.11[1] ).

The parties do not fall within any of the classes of persons set forth in the statute. While respondent and petitioner's mother were married, the parties were persons related by affinity and thus members of the same family or household for the purpose of a family offense proceeding (see, Matter of Nadeau v. Sullivan, 204 A.D.2d 913, 914, 612 N.Y.S.2d 501). As long as the relationship between stepfather and stepdaughter continued, the parties came within the statutory definition regardless of whether they shared the same living quarters (see, Matter of Nadeau v. Sullivan, supra, at 914, 612 N.Y.S.2d 501). By definition, however, a relation of affinity is based upon marriage (see, Black's Law Dictionary 59 [6th ed. 1990] ) and divorce destroys the foundation of that relation. Thus, the relation of affinity between stepparent and stepchildren terminates upon the divorce of the parent and stepparent (see, Chiarello v. Chiarello, 51 A.D.2d 1089, 381 N.Y.S.2d 156; 45 N.Y. Jur. 2d, Domestic Relations, § 343; see also, Matter of Eckhardt v. Eckhardt, 37 A.D.2d 629, 323 N.Y.S.2d 611; Besharov, Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct. Act § 415, at 105 [limited duty of stepparent to support stepchildren does not survive a divorce from the legal parent] ). The court, therefore, lacked jurisdiction to entertain the application by petitioner for an order of protection against her former stepfather.

In conclusion, we note that the Legislature has, on three occasions, broadened the definition of "members of the same family or household" in order to fill perceived gaps in jurisdiction over family offense proceedings (L. 1980, ch. 530, § 5 [substituting relations of affinity in the third degree for relations in the second degree]; L. 1981, ch. 416, § 14 [omitting all reference to degree of affinity]; L. 1984, ch. 948, § 7 [adding former spouses and persons who have a child in common]; see, Besharov, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 812, at 136, and 1984 Supp Practice Commentary, 1997 Pocket Part, at 56). In the last three years, the Legislature has also enacted sweeping reforms aimed at expanding the levels of protection and resources available to victims of domestic violence (see, L. 1996, ch. 85; L. 1995, ch. 483; L. 1994, ch. 222 [Family Protection...