Summary
In Leffingwell, there was physical and verbal abuse, excessive drinking and other annoying conduct resulting from respondent coming home late at night.
Summary of this case from M.T. v. E.TOpinion
February 18, 1982
Appeal from an order of the Family Court of Schenectady County (Griset, J.), entered August 17, 1981, which granted petitioner's application for a protective order. Petitioner initiated the instant proceeding in Family Court alleging that the respondent husband had engaged in conduct which constituted harrassment. Petitioner contended that respondent abused her physically and verbally, drank excessively, and came home at late hours disturbing her peace and quiet. The court found that a family offense had been committed by respondent and granted petitioner an order of protection which required that respondent: (a) refrain from any violent, offensive conduct towards the petitioner; (b) refrain from consumption of alcoholic beverages in the marital residence; (c) refrain from entering the home in an intoxicated state; (d) remain out only during the hours of 9:00 P.M. to 1:00 A.M. Monday, Friday and Saturday nights; (e) vacate his home. Respondent urges that a fair preponderance of the evidence did not support the issuance of an order of protection and that the conditions of the order are unreasonable and not in conformity with section 842 FCT of the Family Court Act. We find that the record amply supports the finding that a family offense did in fact occur. Section 842 FCT of the Family Court Act sets out the conditions which may be granted under an order of protection. The major criterion of the reasonableness of conditions imposed is whether they are likely to be helpful in eradicating the root of family disturbance. Where, as here, the husband is removed from the household, the curfew imposed on him on Fridays and Saturdays is not relevant to forestalling conduct deemed offensive and which would be the source of disturbance and offense to his spouse were he in the home. To that extent, there must be a modification. Order modified, on the law and the facts, to the extent of striking the condition imposing a curfew on respondent, and, as so modified, affirmed, without costs. Sweeney, J.P., Kane, Mikoll and Yesawich, Jr., JJ., concur; Levine, J., not taking part.