Opinion
14 CAF 19-00053
02-05-2021
In the Matter of Adam HENSHAW, Petitioner-Appellant, v. Caroline HILDEBRAND, Respondent-Respondent. (Appeal No. 1.)
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER-APPELLANT. PAUL BLEAKLEY, GENEVA, ATTORNEY FOR THE CHILDREN.
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER-APPELLANT.
PAUL BLEAKLEY, GENEVA, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated, and the matter is remitted to Family Court, Ontario County, for further proceedings in accordance with the following memorandum: In appeal No. 1, petitioner father appeals from an order granting respondent mother's motion to dismiss his family offense petition brought against her under Family Court Act article 8. In appeal No. 2, the father appeals from an order granting the mother's oral motion to dismiss his petition seeking enforcement of an existing custody and visitation order against her under article 6.
We agree with the father in appeal No. 1 that Family Court erred in granting the motion. The father stated a cause of action for at least harassment in the second degree under Penal Law § 240.26 (3), based on his allegations that the mother contacted him by text and telephone a minimum of 110 times over two days, even after he told her to stop contacting him (see Matter of Angelique QQ. v. Thomas RR. , 151 A.D.3d 1322, 1323, 57 N.Y.S.3d 231 [3d Dept. 2017] ; Matter of James XX. v. Tracey YY. , 146 A.D.3d 1036, 1039, 45 N.Y.S.3d 621 [3d Dept. 2017] ; see also Matter of Finn v. Harrison , 188 A.D.3d 1200, 1201, 132 N.Y.S.3d 850 [2d Dept. 2020] ). Contrary to the mother's assertion, there is no requirement that a family offense petition be verified (see Family Ct Act § 821 [1] ; Matter of Ellen Z. v. Isaac D. , 47 Misc. 3d 389, 392, 1 N.Y.S.3d 766 [Family Ct., Queens County 2015] ). We further agree with the father that the court acquired personal jurisdiction over the mother with respect to the family offense petition, despite the fact that she was residing in Texas, inasmuch as the father fulfilled all necessary requirements (see CPLR 302 [b] ; Family Ct Act § 154 [c] ), and the mother admitted service of the family offense petition by mail (see CPLR 312-a ). We therefore reverse the order in appeal No. 1, deny the motion, reinstate the family offense petition, and remit the matter to Family Court for further proceedings on the petition.
With respect to appeal No. 2, we note as a preliminary matter that the mother's oral motion to dismiss the enforcement petition was not made on notice, and thus the father may not appeal as of right from the order deciding that motion (see CPLR 5701 [a] [2], [3] ; Braun v. Cesareo [Appeal No. 6], 170 A.D.3d 1540, 1541, 94 N.Y.S.3d 744 [4th Dept. 2019] ; see also Sholes v. Meagher , 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ). In the exercise of our discretion, however, we treat the notice of appeal in appeal No. 2 as an application for permission to appeal and grant such permission (see Czechowski v. Buffalo Niagara Med. Campus, Inc. , 175 A.D.3d 1817, 1817, 109 N.Y.S.3d 804 [4th Dept. 2019] ).
We agree with the father in appeal No. 2 that the court erred in granting the motion. Insofar as the court granted the motion on the ground that the State of Texas was the appropriate forum, " ‘[t]he issue of inconvenient forum dismissal is addressed to Family Court's discretion after consideration of the statutory factors’ " ( Matter of Montanez v. Tompkinson , 167 A.D.3d 616, 618, 90 N.Y.S.3d 62 [2d Dept. 2018] ; see Domestic Relations Law § 76-f [2] ), and thus "[t]he court is required to consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum" ( Matter of Helmeyer v. Setzer , 173 A.D.3d 740, 743, 105 N.Y.S.3d 541 [2d Dept. 2019] ). Here, the court failed to permit the father to submit information concerning the statutory factors, and the record does not indicate whether the court considered them; thus, the court erred insofar as it granted the motion on that basis (see Graves v. Huff [Appeal No. 2], 169 A.D.3d 1476, 1477, 93 N.Y.S.3d 764 [4th Dept. 2019] ). In any event, we conclude that the court erred in granting the motion inasmuch as the mother submitted no evidence in support of the motion and failed to specify any statutory or other legal basis for the requested relief (see LaGuardia v. City of New York , 237 A.D.2d 257, 257, 655 N.Y.S.2d 395 [2d Dept. 1997] ; see also Village of Sharon Springs v. Barr , 165 A.D.3d 1445, 1447, 86 N.Y.S.3d 244 [3d Dept. 2018] ; Matter of Goodyear v. New York State Dept. of Health , 163 A.D.3d 1427, 1428, 82 N.Y.S.3d 280 [4th Dept. 2018], lv denied 32 N.Y.3d 914, 2019 WL 637678 [2019] ). We note that the mother had several months to make a proper motion on notice to dismiss the enforcement petition, but she did not do so (see generally Matter of Clark v. Kittles , 160 A.D.3d 1420, 1421, 76 N.Y.S.3d 689 [4th Dept. 2018], lv denied 31 N.Y.3d 911, 2018 WL 3117896 [2018] ). We therefore reverse the order in appeal No. 2, deny the motion, reinstate the enforcement petition, and remit the matter to Family Court for further proceedings on the petition. Inasmuch as the limited information in the record before us reflects that the father has had no visitation or contact with the child named in the enforcement petition since the summer of 2017, we direct the court to hold such proceedings forthwith.