Webster v. Larbour

207 A.D.3d 825

170 N.Y.S.3d 719

In the Matter of Courtenay WEBSTER, Petitioner,

v.Randy LARBOUR, Appellant.

(And Four Other Related Proceedings.)

532808

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

Calendar Date: May 23, 2022

Decided and Entered: July 7, 2022

Samantha H. Miller, Schenectady, for appellant.

Before: Egan Jr., J.P., Lynch, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Ceresia, J.

Appeal from an amended order of the Family Court of Saratoga County (Pelagalli, J.), entered January 6, 2021, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 8, finding respondent to have committed family offenses, and issued an order of protection.

Petitioner (hereinafter the wife) and respondent (hereinafter the husband) were married in August 2019. Subsequently, in April 2020, the wife filed a family offense petition alleging that the husband had committed harassment in the first or second degree based upon allegations that, on numerous occasions between July 2019 and April 2020, the husband had engaged in stalking, threatening and abusive behavior. Family Court issued a temporary order of protection, after which the wife filed several violation petitions alleging that the husband came to the residence and continued to contact her despite the order of protection. Following a fact-finding hearing, Family Court found that the husband had committed the family offenses of harassment in the first and second degrees, and granted two of the mother's violation petitions. Consequently, the Court issued a final order of protection in favor of the mother and her child.¹

The husband's primary argument on appeal is that the wife utilized the subject Family Court proceeding to circumvent the eviction moratorium instituted as a result of the COVID–19 pandemic. More specifically, the husband contends that the wife's brother, who owns the residence where the husband and the wife had been jointly residing, wanted to evict the husband but was unable to do so due to the eviction moratorium and, to get around that, the wife agreed to orchestrate the instant proceeding. However, the husband made this very claim during his direct testimony, yet Family Court nevertheless found the wife's allegations of the husband's harassing behavior and multiple violations of the order of protection to be credible, and the court's credibility determinations are accorded great weight on appeal (see Matter of Stephanie R. v. Walter Q., 203 A.D.3d 1440, 1440–1441, 165 N.Y.S.3d 169 [2022] ; Matter of Allen v. Emery, 187 A.D.3d 1339, 1340, 133 N.Y.S.3d 662 [2020] ). Upon review of the hearing evidence – which demonstrated that the husband pushed the wife, threw a glass ornament at her and also engaged in intimidating behavior including following her and threatening to disclose intimate photos of her to her employer and the father of her child – we are satisfied that the wife established, by a fair preponderance of the evidence, that the...