In re Shamper v. Shamper

1 A.D.2d 441, 766 N.Y.S.2d 696

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 2003
• Status: Published

Opinion

In a family offense proceeding pursuant to Family Court Act article 8, the former wife appeals from an order of the Family Court, Nassau County (Lawrence, J.), dated November 14, 2002, which, after a fact-finding hearing, granted the former husband an order of protection, and, in effect, found that the former wife had on two occasions violated a temporary order of protection of the same court dated March 20, 2002, by her behavior on March 15, 2002, and April 10, 2002, and committed her to the custody of the Nassau County Correctional Facility for consecutive terms of 30 and 10 days incarceration, respectively.

Ordered that the order is modified, on the law, by deleting the provisions thereof, in effect, finding that the former wife violated the temporary order of protection by her behavior on March 15, 2002, and committing her to the custody of the Nassau County Correctional Facility for a term of 30 days incarceration; as so modified, the order is affirmed, without costs or disbursements.

The Family Court erroneously found that the former wife had violated a temporary order of protection by assaulting the former husband on March 15, 2002, as the temporary order of protection was not in effect at the time of the assault. Accordingly, the Family Court did not have the authority to commit the former wife to a 30-day term of incarceration for the assault (see Family Ct Act §§ 841, 842; Alfeo v Alfeo, 306 AD2d 471 [2003]; People v Markidis, 184 Misc 2d 116 [2000]; S v S, 63 Misc 2d 1 [1970]).

The former wife’s remaining contentions are without merit. Smith, J.E, Townes, Cozier and Mastro, JJ., concur.