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Keywords

hearingharassmentdivorceaggravating circumstances
appealhearingharassmentdivorceappellantcredibility

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Mansour, Matter of

Facts

Rami Mahgoub and the petitioner, who are divorced, are the parents of a child born in 2007. The petitioner initiated a family offense proceeding in 2016, alleging that Mahgoub committed various family offenses in 2012 and 2016, seeking an order of protection for herself and the child. After a fact-finding hearing, the Family Court found Mahgoub committed several offenses, including menacing and disorderly conduct, leading to a five-year order of protection.

The petitioner and the appellant, who are divorced, are the parents of a child born in 2007. In 2016, the petitioner commenced this family offense proceeding pursuant to Family Court Act article 8, alleging in her amended petition, that the appellant committed various family offenses in 2012 and 2016, and seeking an order of protection against the appellant for herself and the child.

Issue

Did the Family Court err in finding that Rami Mahgoub committed the family offenses of disorderly conduct and menacing in the second degree?

Did the Family Court err in finding that Rami Mahgoub committed the family offenses of disorderly conduct and menacing in the second degree?

Rule

In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence. The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court.

'In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence' ( Matter of Shank v Miller , 148 AD3d 1160, 1160, 50 NYS3d 525 [2017] , quoting Matter of Davis v Wright , 140 AD3d 753, 754, 30 NYS3d 923 [2016] ; see Family Ct Act 832 ; Matter of Livesey v Gulick , 194 AD3d 1045, 1047, 149 NYS3d 479 [2021] ). 'The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court' ( Matter of Lengiewicz v Lengiewicz , 167 AD3d 608, 608, 89 NYS3d 241 [2018] , quoting Matter of Washington v Washington , 158 AD3d 717, 718, 70 NYS3d 560 [2018] ; see Matter of Livesey v Gulick , 194 AD3d at 1047 ).

Analysis

The court analyzed the evidence presented during the fact-finding hearing and concluded that the Family Court's findings regarding disorderly conduct against the child were unsupported by evidence of intent or recklessness. However, the court upheld the findings of harassment and menacing in the third degree, noting that the evidence supported the conclusion that Mahgoub committed these offenses, particularly in light of aggravating circumstances.

Here, the evidence adduced at the hearing failed to establish, by a fair preponderance of the evidence, that the appellant committed the family offense of disorderly conduct against the child in May 2012, because there was no evidence that he acted with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm ( see Matter of Little v Renz , 137 AD3d 916, 916, 27 NYS3d 184 [2016] ). However, according due deference to the credibility determinations of the Family Court, a fair preponderance of the evidence adduced at the fact-finding hearing supported the court's finding that the appellant committed the family offense of harassment in the second degree against the petitioner in May 2012 ( Penal Law 240.26 ). Further, a fair preponderance of the evidence adduced at the fact-finding hearing supported the court's findings that the appellant committed the family offenses of harassment in the second degree ( id. ), menacing in the third degree ( id. 120.15 ), and disorderly conduct ( id. 240.20 ) in 2016.

Conclusion

The appellate court modified the Family Court's order, affirming it as modified, specifically changing the finding of menacing from the second degree to the third degree.

The order of fact-finding and disposition is modified, on the law and the facts, (1) by deleting the provision thereof finding that Rami Mahgoub committed the family offense of disorderly conduct against Ahmed M. in May 2012, and (2) by deleting the provision thereof finding that Rami Mahgoub committed the family offense of menacing in the second degree against the petitioner, and substituting therefor a provision finding that Rami Mahgoub committed the family offense of menacing in the third degree against the petitioner; as so modified, the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

Who won?

Rami Mahgoub prevailed in part, as the appellate court found that the evidence did not support the Family Court's findings of disorderly conduct and menacing in the second degree.

Rami Mahgoub prevailed in part, as the appellate court found that the evidence did not support the Family Court's findings of disorderly conduct and menacing in the second degree.

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