Opinion
2021-09051, 2021-09057 Docket Nos. O-1014-21, O-2116-21
04-26-2023
In the Matter of Tyrone SEALY, respondent, v. Olivia PEART, appellant. (Proceeding No. 1) In the Matter of Olivia Peart, appellant, v. Tyrone Sealy, respondent. (Proceeding No. 2)
New York Legal Assistance Group, New York, NY (Lisa Rivera and Amanda M. Beltz of counsel), for appellant.
New York Legal Assistance Group, New York, NY (Lisa Rivera and Amanda M. Beltz of counsel), for appellant.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, CHERYL E. CHAMBERS, BARRY E. WARHIT, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 8, Olivia Peart appeals from two orders of protection of the Family Court, Queens County (Daniel Lewis, J.), both dated October 14, 2021. The first order of protection, after a hearing, inter alia, directed Olivia Peart to stay away from Tyrone Sealy until and including October 14, 2022. The second order of protection, insofar as appealed from, after a hearing, in effect, did not find aggravating circumstances existed and directed Tyrone Sealy to stay away from Olivia Peart only until and including October 14, 2022.
ORDERED the matters are remitted to the Family Court, Queens County, to set forth the findings of fact that formed the basis of its determinations, and the appeals are held in abeyance in the interim. The Family Court, Queens County, is directed to file its report with all convenient speed.
The parties were previously engaged. On or about January 20, 2021, Tyrone Sealy filed a petition alleging that Olivia Peart committed various family offenses against him. Thereafter, on or about March 11, 2021, Peart filed a petition alleging that Sealy committed various family offenses against her. After a hearing on, among other things, the parties’ family offense petitions, the Family Court issued mutual orders of protection dated October 14, 2021, directing, inter alia, that each party stay away from the other until and including October 14, 2022. Peart appeals from the order of protection directing that she stay away from Sealy, and from so much of the order of protection directing that Sealy stay away from her as, in effect, did not find aggravating circumstances existed and directed that Sealy stay away from her only until and including October 14, 2022.
In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, that the charged conduct was committed as alleged in the petition (see Matter of Self v. Self, 167 A.D.3d 631, 632, 86 N.Y.S.3d 911 ; Matter of Frimer v. Frimer, 143 A.D.3d 895, 896, 39 N.Y.S.3d 226 ; Matter of Bah v. Bah, 112 A.D.3d 921, 921, 978 N.Y.S.2d 301 ). The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Kalyan v. Trasybule, 189 A.D.3d 1046, 1046, 136 N.Y.S.3d 35 ; Matter of Frimer v. Frimer, 143 A.D.3d at 896, 39 N.Y.S.3d 226 ; Matter of Savas v. Bruen, 139 A.D.3d 737, 738, 31 N.Y.S.3d 149 ).
Effective appellate review requires that appropriate factual findings be made by the hearing court since it is the court best able to measure the credibility of the witnesses (see Matter of Jose L. I., 46 N.Y.2d 1024, 1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059 ; Matter of Gray v. Tyson, 205 A.D.3d 720, 721, 168 N.Y.S.3d 491 ; Matter of Georgiou–Ely v. Ely, 194 A.D.3d 715, 716, 143 N.Y.S.3d 584 ). In granting or denying a petition for an order of protection, the Family Court must state the facts deemed essential to its determination (see CPLR 4213[b] ; Matter of Milworm v. Milworm, 132 A.D.3d 677, 677, 17 N.Y.S.3d 194 ; Matter of Deepti v. Kaushik, 126 A.D.3d 790, 790, 5 N.Y.S.3d 299 ; Matter of Smith v. Falco–Boric, 87 A.D.3d 1146, 1147, 929 N.Y.S.2d 870 ). Remittal is not necessary, however, where the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Porter v. Moore, 149 A.D.3d 1082, 1083, 53 N.Y.S.3d 174 ; Matter of Deepti v. Kaushik, 126 A.D.3d at 790, 5 N.Y.S.3d 299 ; Matter of Smith v. Falco–Boric, 87 A.D.3d at 1147, 929 N.Y.S.2d 870 ).
Here, the Family Court, which was presented with sharply conflicting accounts by the parties regarding their allegations, issued mutual orders of protection without setting forth any findings with respect to the credibility of the parties or the facts deemed essential to its determinations (see CPLR 4213[b] ). Since the record presents factual issues, including questions of credibility, and in light of the conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance (see McDermott v. McDermott, 124 A.D.2d 715, 715, 508 N.Y.S.2d 467 ). Accordingly, the appeals are held in abeyance and the matters are remitted to the Family Court, Queens County, to set forth the findings of fact that formed the basis of its determinations (see Matter of Bouie v. Arvelo–Smith, 12 A.D.3d 668, 668, 784 N.Y.S.2d 894 ; Matter of Carter, 295 A.D.2d 617, 618, 744 N.Y.S.2d 881 ; McDermott v. McDermott, 124 A.D.2d at 715, 508 N.Y.S.2d 467 ).
DILLON, J.P., CONNOLLY, CHAMBERS and WARHIT, JJ., concur.