Stallings v. Stallings

188 A.D.3d 894

134 N.Y.S.3d 407 (Mem)

In the Matter of Belinda STALLINGS, appellant,

v.Michelle STALLINGS, respondent.

2019–04927

Docket No. O–8–19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 1, 2020

November 12, 2020

Paul N. Weber, Cornwall, NY, for appellant.

Kelli M. O'Brien, Goshen, NY, for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Orange County (Victoria B. Campbell, J.), dated April 29, 2019. The order, insofar as appealed from, after a hearing, in effect, denied that branch of the petition which alleged that the respondent committed the family offense of harassment in the second degree and dismissed the proceeding with prejudice.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The petitioner commenced this proceeding pursuant to Family Court Act article 8, alleging, inter alia, that the respondent, the petitioner's sister, had committed the family offense of harassment in the second degree against her. After a hearing, the Family Court determined, among other things, that the petitioner failed to establish by a preponderance of the evidence that the respondent committed the family offense of harassment in the second degree and, in effect, denied that branch of the petition and dismissed the proceeding with prejudice. The petitioner appeals.

In a family offense proceeding, the petitioner has the burden of establishing the family offense by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Straight v. Grant, 184 A.D.3d 647, 648, 123 N.Y.S.3d 532 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal, such that they will not be disturbed unless clearly unsupported by the record" ( Matter of Porter v. Moore, 149 A.D.3d 1082, 1083, 53 N.Y.S.3d 174 ; see Matter of Henderson v. Henderson, 137 A.D.3d 911, 912, 27 N.Y.S.3d 183 ). Here, contrary to the petitioner's contention, the Family Court's determination that she failed to establish, by a fair preponderance of the evidence, that the respondent committed the family offense of harassment in the second degree hinged on issues of credibility and is supported by the...