Barnes v. Barnes

54 A.D.3d 755, 863 N.Y.S.2d 758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 9, 2008
• Status: Published

Opinion

In related family offense proceedings pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Suffolk County (Freundlich, J.), dated June 4, 2007, which, after a hearing, dismissed her petition alleging that the respondent violated the conditions of an order of protection of the same court dated June 7, 2006, and her separate petition to modify the conditions of that order of protection.

Ordered that the order is affirmed, without costs or disbursements.

Where the Family Court is primarily presented with issues of credibility, its factual determinations are afforded great weight on appeal, and will not be disturbed if supported by the record (see Matter of Hijri v Fargaly, 49 AD3d 737 [2008]; Matter of Wilkins v Wilkins, 47 AD3d 823 [2008]; Matter of Spillman v Spillman, 40 AD3d 770 [2007]; Matter of Belgrave v Mingo, 28 AD3d 479 [2006]). Here, the Family Court was presented with sharply conflicting testimony as to whether the respondent violated the subject order of protection by making a threatening telephone call to the petitioner. The court’s determination that the petitioner had failed to establish that this violation occurred was based solely upon its assessment of the credibility of the parties, and is supported by the record (see Matter of Belgrave v Mingo, 28 AD3d 479 [2006]). Furthermore, the petitioner failed to offer sufficient proof to establish any other violation of the order of protection. Accordingly, the court properly dismissed both the petition alleging a violation of the order of protection, and the separate petition to modify the conditions of the order of protection by extending its term. Mastro, J.P., Dillon, Eng and Belen, JJ., concur.