Opinion
2011-12-6
In the Matter of Lisa Ann PARRELLA, respondent, v. Heather FREELY, appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Dori Cohen of counsel), for appellant. Edward J. Emanuele, Mineola, N.Y., attorney for the child.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Dori Cohen of counsel), for appellant. Edward J. Emanuele, Mineola, N.Y., attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, Heather Freely appeals from an order of protection of the Family Court, Nassau County (Eisman, J.), dated July 13, 2010, which, after a hearing, in effect, granted the petition of Lisa Ann Parrella to hold her in violation of a prior order of protection dated September 15, 2009, as amended December 30, 2009, and directed her, inter alia, to stay away from Lisa Ann Parrella and to refrain from communication with or about Lisa Ann Parrella for a period of two years.
ORDERED that the order of protection dated July 13, 2010, is reversed, on the law, without costs or disbursements, the petition is denied, the order of protection dated September 15, 2009, as amended December 30, 2009, is vacated, and the proceeding is dismissed for lack of subject matter jurisdiction.
In January 2010 the appellant was dating the former boyfriend of Lisa Ann Parrella, with whom Parrella had a child. At that time, Parrella filed a petition against the appellant, alleging that the appellant violated a previous order of protection. On July 13, 2010, the Family Court entered an order which, in effect, granted the petition and, inter alia, directed the appellant to stay away from Parrella and to refrain from communicating with or about Parrella for a period of two years. On this appeal, the appellant argues, among other things, that the Family Court lacked subject matter jurisdiction over the proceeding.
“The Family Court is a court of limited jurisdiction and, thus, it ‘cannot exercise powers beyond those granted to it by statute’ ” ( Matter of Seye v. Lamar, 72 A.D.3d 975, 975–976, 900 N.Y.S.2d 112, quoting Matter of Johna M.S. v. Russell E. S., 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471). Where the Family Court had no jurisdiction to issue an order of protection or temporary order of protection initially, such an order “was void ab initio for all purposes, including the power to hold [a party] in contempt” ( Matter of Robert B.-H. [ Robert H.], 82 A.D.3d 1221, 1222, 919 N.Y.S.2d 366; see Matter of Fish v. Horn, 14 N.Y.2d 905, 906, 252 N.Y.S.2d 313, 200 N.E.2d 857).
Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur among enumerated classes of people, including persons who share an “intimate relationship” with each other (Family Ct. Act § 812[1][e]; see Matter of LaVann v. Bell, 77 A.D.3d 1422, 1423, 909 N.Y.S.2d 243; Matter of Jessica D. v. Jeremy H., 77 A.D.3d 87, 88–89, 906 N.Y.S.2d 119). Here, there is no evidence in the record that the appellant and Parrella had a direct relationship. Instead, the evidence revealed that the parties had met personally only during the course of the court proceedings and that the appellant had never met Parrella's child. Therefore, there is no evidence that the parties' relationship was an “intimate relationship” within the meaning of Family Court Act § 812(1)(e) ( see Matter of Tyrone T. v. Katherine M., 78 A.D.3d 545, 545, 911 N.Y.S.2d 56; Matter of Seye v. Lamar, 72 A.D.3d at 976–977, 900 N.Y.S.2d 112).
Since the parties did not have an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), the Family Court lacked subject matter jurisdiction to issue the original order of protection or to issue the order appealed from ( see Matter of Fish v. Horn, 14 N.Y.2d 905, 252 N.Y.S.2d 313, 200 N.E.2d 857).
In light of the foregoing, the appellant's remaining contentions have been rendered academic.