Pearlman v. Pearlman

• Decision Date: 03 November 2010
• Citation: 911 N.Y.S.2d 87,78 A.D.3d 711
• Parties: In the Matter of Donna PEARLMAN, respondent, v. Henry PEARLMAN, appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 87

78 A.D.3d 711

In the Matter of Donna PEARLMAN, respondent,

v.Henry PEARLMAN, appellant.

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

Nov. 3, 2010.

Henry S. Pearlman, White Plains, N.Y., appellant pro se.

Donna F. Pearlman, Bedford, N.Y., respondent pro se.

Irene J. Goldsmith, White Plains, N.Y., attorney for the child.

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, FRED T. SANTUCCI, and SANDRA L. SGROI, JJ.

In a family offense proceeding pursuant to Family Court Act article 8, the father appeals (1) from an order of fact-finding and disposition of the Family Court, Westchester County (Capeci, J.), dated June 24, 2009, which, after fact-finding and dispositional hearings, found that he had committed the family offense of disorderly conduct, and directed the issuance of an order of protection in favor of the petitioner and against him based upon a finding of aggravating circumstances, (2) from an order of protection of the same court dated June 17, 2009, which, inter alia, directed him to stay away from, and refrain from communicating with, the petitioner and the parties' childfor a period up to and including June 17, 2014, and to refrain from assaulting, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, intimidation, criminal mischief, threats or any criminal offense against the petitioner, and (3), as limited by his brief, from so much of an order of the same court, also dated June 17, 2009, as denied his motion for a mistrial.

ORDERED that the appeal from the second order dated June 17, 2009, is dismissed, without costs or disbursements, as that order was superseded by the order of fact-finding and disposition dated June 24, 2009; and it is further,

ORDERED that the order of fact-finding and disposition and the order of protection are affirmed, without costs or disbursements.

"A family offense must be established by a fair preponderance of the evidence ( see Family Ct. Act § 832; Matter of Nelson-Waller v. Waller, 60 A.D.3d 1068, 875 N.Y.S.2d 810). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court" ( Matter of Thomas v. Thomas, 72 A.D.3d 834, 835, 898 N.Y.S.2d 495 [internal quotation marks omitted]; see Matter of Nusbaum v. Nusbaum, 59 A.D.3d 725, 874 N.Y.S.2d 378; Matter of Kraus v. Kraus, 26 A.D.3d 494, 495, 809 N.Y.S.2d 471), and the Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal ( see Matter of Topper v. Topper, 271 A.D.2d 613, 706 N.Y.S.2d 147; Matter of Hallissey v. Hallissey, 261 A.D.2d 544, 690 N.Y.S.2d 603; Matter of Dendy v. Bonelli, 260 A.D.2d 633, 687 N.Y.S.2d 269).

Here, the evidence adduced at the fact-finding hearing proved by the requisite preponderance of the evidence that the appellant committed acts constituting disorderly conduct ( see Family Ct. Act § 812[1]; Penal Law § 240.20[2], [3]; Matter of Medranda v. Mondelli, 74 A.D.3d 972, 901 N.Y.S.2d 867).

We agree with the appellant that the Family Court erred in admitting evidence at the dispositional hearing concerning an incident that was not "relatively contemporaneous" ( Matter of Ann P. v. Nicholas C.P., 44 A.D.3d 776, 777, 843 N.Y.S.2d 406 [internal quotation marks omitted]; see Matter of Thomas v. Thomas, 32 A.D.3d 521, 820 N.Y.S.2d 316; Swersky v. Swersky, 299 A.D.2d 540, 541, 750 N.Y.S.2d 509). However, its finding of aggravating circumstances was based on numerous other factors, including its own observation of the appellant's "wildly erratic and inappropriate behavior and affect in the courtroom," that were sufficient to support the finding, even without...