Opinion
296 CAF 18–00883
06-28-2019
In the Matter of Daniel Lee FERRATELLA, Petitioner–Respondent, v. Angela Beers THOMAS, Respondent–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT. MICHELLE A. COOKE, CORNING, FOR PETITIONER–RESPONDENT. BRITTANY L. LINDER, BATH, ATTORNEY FOR THE CHILD.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT.
MICHELLE A. COOKE, CORNING, FOR PETITIONER–RESPONDENT.
BRITTANY L. LINDER, BATH, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified in the interest of justice and on the law by vacating that part finding that respondent willfully violated the order of protection when she left petitioner a voicemail and vacating the 30–day suspended jail sentence and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Steuben County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 8, respondent mother appeals from an order that, inter alia, imposed a 30–day suspended jail sentence based upon a determination after a hearing that she willfully violated an order of protection, dated September 26, 2017. In rendering its determination, Family Court found that the mother violated the order of protection on November 4, 2017, when she parked her vehicle outside petitioner father's residence with her engine off for approximately 30 minutes. The court further found that the mother had violated the order of protection when she left a voicemail for the father regarding a nonemergent issue. The court imposed the suspended jail sentence on the basis of both of those violations.
Contrary to the mother's contention, the court did not abuse its discretion in denying her attorney's request for an adjournment of the fact-finding hearing after the mother failed to appear. It is well settled that "[t]he grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ " ( Matter of Steven B. , 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ; see Matter of Clausell v. Salame , 156 A.D.3d 1401, 1401–1402, 65 N.Y.S.3d 873 [4th Dept. 2017] ), and here the mother's attorney "failed to demonstrate that the need for the adjournment ... was not based on a lack of due diligence on the part of the mother or her attorney" ( Matter of Sophia M.G.-K. [Tracy G.-K.] , 84 A.D.3d 1746, 1747, 922 N.Y.S.2d 907 [4th Dept. 2011] ; see Matter of Grice v. Harris , 114 A.D.3d 1276, 1276, 980 N.Y.S.2d 865 [4th Dept. 2014] ).
The mother further contends that she was denied due process because she was not informed of her right to be present and to present proof on the hearing date and because the court considered conduct that was not alleged in the violation petition. Neither of her contentions is preserved for our review (see Matter of Burley v. Burley , 128 A.D.3d 1421, 1421, 7 N.Y.S.3d 815 [4th Dept. 2015], lv denied 25 N.Y.3d 914, 16 N.Y.S.3d 518, 37 N.E.3d 1161 [2015] ; see also Matter of Dakota H. [Danielle F.] , 126 A.D.3d 1313, 1315, 5 N.Y.S.3d 742 [4th Dept. 2015], lv denied 25 N.Y.3d 909, 12 N.Y.S.3d 618, 34 N.E.3d 369 [2015] ). We address the latter contention in the interest of justice because, as the father correctly concedes, the court considered conduct not alleged in the petition, i.e., the voicemail incident, in determining that the mother failed to comply with the order of protection and thus violated the mother's right to due process (see generally Matter of Commissioner of Social Servs. v. Turner , 99 A.D.3d 1244, 1245, 951 N.Y.S.2d 814 [4th Dept. 2012] ). "While Family Court proceedings are permitted to be informal, due process considerations require that a commitment be based on a petition alleging the facts supporting the commitment" ( Matter of Anderson v. Anderson , 25 A.D.2d 512, 512, 267 N.Y.S.2d 75 [1st Dept. 1966] ; see Matter of Felicia W. v. Chandler C. , 9 A.D.3d 830, 830, 779 N.Y.S.2d 377 [4th Dept. 2004] ). Despite the court's error in considering conduct not alleged in the petition, we nevertheless conclude that reversal is not required "given the other evidence of the mother's [violation on November 4, 2017,] which was alleged in the petition and addressed at the fact-finding hearing" ( Matter of Brianna R. [Marisol G.] , 78 A.D.3d 437, 439, 910 N.Y.S.2d 71 [1st Dept. 2010], lv denied 16 N.Y.3d 702, 917 N.Y.S.2d 108, 942 N.E.2d 319 [2011] ).
However, while the court has the statutory authority to impose a period of incarceration for the mother's willful violation on November 4, 2017 (see Family Ct Act § 846–a ), the court here stated that it imposed the 30–day suspended jail sentence based upon both violations and further stated that it found the mother's conduct with respect to the voicemail incident to be more concerning. Thus, in light of our conclusion, we modify the order by vacating that part finding that the mother willfully violated the order of protection by leaving the voicemail message and vacating the 30–day suspended jail sentence, and we remit the matter to Family Court to impose a punishment in its discretion based only on the November 4, 2017 incident (see generally Matter of Stuttard v. Stuttard , 2 A.D.3d 1415, 1416–1417, 768 N.Y.S.2d 902 [4th Dept. 2003] ).
Based upon our determination, the mother's remaining contentions are academic.