Roofeh v. Roofeh
| Citation | 525 N.Y.S.2d 765,138 Misc.2d 889 |
| Parties | , 56 USLW 2539 Elizabeth Jennings ROOFEH, Plaintiff, v. Jahanshah ROOFEH, Defendant. |
| Decision Date | 22 February 1988 |
| Court | United States State Supreme Court (New York) |
Joel R. Brandes, P.C., Garden City, for plaintiff.
Ruskin, Schlissel, Moscou, Evans & Faltischer, P.C. by Stephen W. Schlissel, Mineola, for defendant.
This appears to be a case of first impression, where a party in a matrimonial action, seeks an order of protection against his spouse, based upon the sole ground that she smokes cigarettes in the presence of himself and the children, causing harm to them.
The plaintiff-wife on or about May 22, 1987, commenced an Action for Divorce on the grounds of cruel and inhuman treatment. An Order to Show Cause for pendente lite relief was served by the plaintiff upon defendant's attorneys on December 10, 1987. The plaintiff's pendente lite motion requested many items of relief, including an Order of Protection against the defendant. The plaintiff further requested that she be granted exclusive occupancy of the marital residence.
On or about January 14th, 1988, the defendant brought on an Order to Show Cause in which he seeks an order of protection against the plaintiff prohibiting her from smoking cigarettes in the presence of himself and their children, together with other requests for relief. The plaintiff has filed an Affidavit in Opposition to the defendant's Cross Motion.
The herein Court's Decision is solely limited to the defendant's Cross Motion for an order of protection against his wife, and no other issue pending between the parties.
The defendant-husband is a physician and claims that his wife's smoking is causing harmful effects upon their children. He describes his wife as a "chain smoker" who smokes at least three packages each day. He claims that she smokes all over the marital residence.
As a physician, he has read and is familiar with the abundance of medical reports and studies that document the adverse effect of "passive smoking" on the health of children and other non-smokers. In support of his opinion as to the adverse effect of smoking upon others, he has attached to his moving papers over 91 pages of scientific material on the subject.
The defendant relies upon Section 240 (sub. 3) of the Domestic Relations Law, as the section upon which the Court is authorized to grant an order of protection in any matrimonial action. He further indicates that the Court not only is empowered, but is required to step in and protect the welfare of adults or children wherever they are subjected to any form of harmful or abusive conduct.
The plaintiff-wife states that she is not a "chain smoker" who smokes one cigarette after another. She claims that his statement regarding the extent of her cigarette smoking is ridiculous and untrue. However, she fails to reveal how much she does in fact smoke, nor does she indicate whether she ever smokes in the presence of the children. Contrary to the defendant's description of her smoking habits, she claims that her cigarette smoking is confined to a small T.V. room on the ground floor of the marital residence. She also indicates that she does not smoke in the upstairs area of the house.
The plaintiff does not dispute the detrimental effects of cigarette smoking, both on the smoker and on those who passively inhale the smoker's cigarette smoke. Nevertheless, she vigorously disputes the defendant's allegations as to the causative relationship between her cigarette smoking and the children's respiratory problems.
Sections 240 and 252 of the Domestic Relations Law authorized the Court in any matrimonial action to issue an order of protection. A detailed review of each of these statutes reveals that neither one provides any standards for determining whether an order of protection should be granted by a Supreme Court Judge in a matrimonial action.
ALAN D. SCHEINKMAN, points out in his Practice Commentary (McKinney's Consolidated Laws of New York, Bk. 14, DRL C.240:30, at 644, C.252:1, at 843) annexed to each of the above statutes, that while neither of the statutes expressly provide standards to be employed in granting orders of protection, it would appear that the substantive law to be applied is that supplied by Article 8 of the Family Court Act.
Sections 812 and 821 of the Family Court Act sets forth and enumerated the types of crime or violations that would constitute a "family offense". They are as follows: disorderly conduct, harassment, menacing, reckless endangerment, assault in the second degree, assault in the third degree, attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household.
DOUGLAS J. BESHAROV, in his Practice Commentary following Section 812 Family Court Act, page 133 (McKinney's Consolidated Laws of New York) stated the following:
"Although the purpose of Article 8 (Family Court Act) is to provide a civil, non-criminal alternative to a criminal prosecution, only the designated forms of criminal conduct trigger Family Court Jurisdiction."
This Court is in full agreement with Judge Hugh R. Elwyn's statement contained in his decision in DiDonna v. DiDonna, 72 Misc.2d 231, 236, 339 N.Y.S.2d 592:
"Although Article 8 of the Family Court Act is entitled 'Family Offenses Proceedings', there is simply no such thing in law as a family offense, no matter how offensive the conduct may be to someone's sensibilities, apart from acts which would constitute disorderly conduct, harassment, menacing, reckless endangerment or assault or attempted assault as those crimes or violations, as the case may be, are defined in the Penal Law."
The law is well settled that a Justice of the Supreme Court or Judge in the Family Court in deciding whether or not to grant an order of protection, must limit himself to the enumerated crimes or violations listed in Section 812 of the Family Court Act as more specifically set forth in the following sections of the Penal Law; disorderly conduct Sec. 240.20, harassment 240.25, menacing 120.15, reckless endangerment 120.20, 120.25, assault in the second degree 120.05, assault in the third degree 120.00, and attempted assault. A request for a temporary or final order of protection in the Supreme or Family Court which fails to allege any of the above enumerated crimes or violations must be dismissed. In a like manner, if the party requesting an order of protection properly alleges but fails to establish by a fair preponderance of the evidence that the acts constituted a violation of any of the enumerated crimes or violations, the Court may not grant an order of protection. (See Peters v. Peters, 100 A.D.2d 900, 474 N.Y.S.2d 785; Hayes v. Hayes, 131 Misc.2d 317, 500 N.Y.S.2d 475; DiDonna v. DiDonna, 72 Misc.2d 231, 339 N.Y.S.2d 592; Rose v. Rose, NYLJ, November 11, 1987.
A temporary or final order of protection is a unique type of court order. The order requires a person to perform or refrain from doing a specified act or acts. Section 168 of the Family Court Act, requires the clerk of the court to issue a copy of the order of protection to all parties affected by the order. It also requires the clerk to file the order with the sheriff or police department in the county in which the petitioner resides, works or goes to school. The presentation of a copy of an order of protection to any peace officer, shall constitute the authority to arrest a person charged with violating the terms of the order and bring the person before the court. It further authorizes a police officer, so far as it lies in his or her power, to aid in securing the protection the order was intended to afford.
History of the use and effect of the temporary or final order of protection has resulted in criticism from both parties. The person in whose favor the order of protection was granted, complains that the peace officers are reluctant to enforce the order. On the other hand, the person who is ordered to perform or restrain his or her actions, pursuant to the terms and conditions of the order, protests that the other person is using the order of protection not as a shield but as a means of punishment and gaining leverage in a pending matter.
DOUGLAS J. BESHAROV, in his practice commentary following Section 168 of the Family Court Act, pages 131-132, McKinney's Consolidated Laws of New York, makes reference to this problem as follows:
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