Matter of A.E.R. v. A.B.

Summary

The Appellate Division, First Department unanimously affirmed a Family Court order finding that the respondent mother committed the family offense of disorderly conduct and granting a two-year order of protection in favor of the petitioner father and the parties' two children. The court deemed the petition amended to conform to the proof, upheld the fact-finding determination and credibility findings, and concluded that including the children in the order of protection was warranted.

Holdings

1. The court properly exercised its discretion under CPLR 3025(c) to deem the petition amended to conform to the proof presented at the fact-finding hearing because the mother did not object and had a full and fair opportunity to contest the September 30, 2023 allegation without claiming unfair surprise or prejudice.
2. A fair preponderance of the evidence supported Family Court's finding that the mother committed the family offense of disorderly conduct on September 30, 2023.
3. There was no basis to disturb Family Court's credibility determinations or factual findings because they had a sound and substantial basis in the record.
4. Including the parties' two children in the order of protection was warranted because the mother's threatening statements to the father were made in the children's presence.
5. The mother's argument that the children should not have been included in the order of protection was unpreserved because she did not raise it before Family Court.

Questions Presented

1. Whether Family Court properly deemed the petition amended to conform to proof concerning an incident not expressly alleged in the petition.
2. Whether the evidence supported the finding that the mother committed the family offense of disorderly conduct.
3. Whether the Appellate Division should disturb Family Court's credibility determinations based on the mother's testimony and recording.
4. Whether the two children were properly included as protected persons in the order of protection.
5. Whether the mother's challenge to including the children in the order of protection was preserved for appellate review.

Disposition

affirmed