SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2753-94T2
D.C.,
Plaintiff-Respondent,
v.
F.R.,
Defendant-Appellant.
_________________________________
Argued November 28, 1995 - Decided January 23, 1996
Before Judges Baime, Villanueva and Kimmelman.
On appeal from Superior Court of New Jersey,
Chancery Division - Family Part, Essex County.
James F. Keegan argued the cause for appellant
(Bendit, Weinstock & Sharbaugh, attorneys; Mr.
Keegan, of counsel; Sherri Davis Fowler and
Robert P. Kramer, on the brief).
Beth A. Callahan argued the cause for respondent
(Clancy, Callahan & Smith, attorneys; Ms.
Callahan, on the brief).
The opinion of the court was delivered by
BAIME, J.A.D.
The Prevention of Domestic Violence Act of 1991 (N.J.S.A. 2C:25-17 to -33) was designed to protect victims of domestic violence and to provide uniformity in prosecuting and adjudicating such claims. When the Act was originally adopted, it offered no protection to individuals subjected to violent acts by persons whom they had merely dated. In 1994, the Act was amended to cover victims of domestic violence who had engaged in
a dating relationship with the offender. L. 1994, c. 93, §1.
The principal question presented in this case is whether the Act
may be applied to remedy pre-amendment acts of violence having
their origin in a dating relationship. We hold that the
amendment substantially altered the scope of the Act by expanding
the class of persons eligible for protection under it and thus
should be applied only prospectively. However, we also conclude
that where an act of domestic violence arising out of a dating
relationship has occurred after the effective date of the
amendment, the prior history of domestic violence between the
parties may be considered by the trial court in determining the
appropriate injunctive or monetary remedy.
This case involves charges of harassment and stalking after a dating relationship between two teenagers soured. All but one of the acts of domestic violence are alleged to have occurred prior to the effective date of the amendment. We need not recount the sordid details at length. Although the proceedings were protracted and the resulting record voluminous, we recite only those facts essential to an understanding of the issues raised.
Plaintiff and defendant attended the same high school and engaged in a dating relationship for approximately thirteen months, beginning in September 1992 and ending in October 1993. Despite its length, the relationship was extremely volatile. According to plaintiff, defendant convinced her after repeated
coaxing to pose for sexually explicit photographs. The
photographs allegedly were taken in defendant's automobile in
January 1993, when plaintiff was sixteen years old. Plaintiff
also asserted that defendant promised not to show the photographs
to anyone, but subsequently threatened to send copies to her
parents. Based upon these threats, defendant persuaded her to
engage in sexual acts and to pose for a second set of
photographs, which were taken in March 1993. We need not
describe these photographs in detail. Suffice it to say, two of
the second set of photographs depict plaintiff engaging in
fellatio. Plaintiff further contended that defendant took an
additional photograph of her topless during a summer excursion to
the shore in 1993. Prior to the hearing, plaintiff subpoenaed
the photographs, which were subsequently admitted into evidence
and are presently sealed.See footnote 1
Defendant admitted taking all of the photographs except the
topless one, which he claimed was given to him by plaintiff.
However, defendant contended that plaintiff posed willingly and
that he never threatened to expose the photographs to her parents
or to others. He also offered a different chronology concerning
when the photographs were taken. We need not recite in detail
defendant's testimony regarding these events. It is enough to
say that defendant claimed the initial photographs of plaintiff
in the automobile were taken in the summer of 1993, not the
winter as plaintiff testified. He asserted that a close
inspection of these pictures corroborated his account because a
pair of bikini bottoms appears on the floorboard of the vehicle.
Defendant claimed that other demonstrative evidence bolstered his
description of the times and places the photographs were taken
and supported his contention that plaintiff's allegations of
threats and domestic violence were entirely fabricated.
It is undisputed that plaintiff continued to date defendant
after the photographs were taken. Plaintiff did not end the
relationship until October 21, 1993. On October 27 she gave
defendant a detailed letter describing their differences.
According to plaintiff, defendant persisted in his attempts to
resume their relationship despite her repeated protestations.
We need not describe these incidents of harassment and
stalking in detail. We merely note that defendant's alarming and
sometimes bizarre behavior became increasingly threatening with
each rebuff. Moreover, family and police intervention had no
deterrent effect on him. Defendant persisted in his alarming
conduct long after it became apparent that his efforts to renew
the relationship were futile.
As we noted earlier, only one of the alleged acts of
domestic violence took place after enactment of the amendment
permitting complaints arising out of a dating relationship. This
act occurred on the night of August 31, 1994. While driving
home, plaintiff noticed what appeared to be Saab headlights
coming from the opposite direction. Plaintiff became concerned
because she had earlier seen defendant driving a Saab.
Plaintiff's fears were further heightened when, peering in her
rearview mirror, she noticed the Saab make a U-turn and pull
behind her automobile. Through the rearview mirror, plaintiff
was able to observe defendant driving the Saab. As plaintiff
accelerated, the Saab closely followed with its horn honking and
its high beams flashing. According to plaintiff, the two
automobiles reached speeds approaching eighty-five miles an hour.
Ultimately, plaintiff drove her car to the police station,
thereby effectively ending the chase.
Defendant denied his involvement in the August 31 incident.
He claimed that the Saab was at a repair shop that night and that
he, his brother and a friend were attending a nightclub in New
York City. To corroborate his account, defendant introduced
telephone records which disclosed a telephone call from the
nightclub to his home at 4:12 a.m. on September 1, 1994.
The trial judge rendered a series of oral and written
opinions in which he made specific findings that plaintiff's
testimony was credible and that defendant's account was
untrustworthy. The judge determined that plaintiff posed for the
second set of photographs out of fear that defendant would show
the first set to her parents and that defendant committed a
sexual assault by coercing plaintiff to engage in fellatio. See
N.J.S.A. 2C:13-5a; N.J.S.A. 2C:14-2c. The judge also found that
defendant committed acts of stalking, see N.J.S.A. 2C:12-10, and
harassment, see N.J.S.A. 2C:33-4, culminating in the automobile
chase of August 31, 1994. The judge applied retroactively the
amendment protecting victims from violent acts arising out of a
dating relationship and assessed punitive damages for each
episode of stalking and harassment. The punitive damages
totalled $5,875. The judge also awarded the plaintiff
compensatory damages and attorneys' fees totalling $14,891. The
judge issued a restraining order prohibiting defendant from
"displaying, assigning, . . . publishing, printing, promoting,
advertising [or] discussing" any of the sexually explicit
photographs. The judge also directed that the photographs be
sealed. Noting that defendant's parents had become embroiled in
the dispute, the judge restrained both defendant and his parents
from having any contact with plaintiff and her family.
Before addressing whether the amendment should be applied retroactively, we briefly comment on defendant's attack upon the Family Part judge's factual findings. Defendant claims the judge ignored compelling demonstrative evidence which disclosed that plaintiff was not telling the truth respecting the times and places the sexually explicit photographs were taken. We reject this contention. To be sure, the evidence presented by defendant raised serious questions concerning the chronology of events. However, the judge's key factual findings are supported by substantial credible evidence contained in the record. Rova Farms Resort v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974). As we noted earlier, the judge made specific findings
regarding the credibility of the witnesses. Some of these
findings were based upon the judge's observations of the demeanor
of the witnesses while testifying. We are obliged to accord
special deference to those findings which were substantially
influenced by the judge's opportunity to hear and see the
witnesses and to have the "feel" of the case, which an appellate
reviewing court does not enjoy. State v. Johnson,
42 N.J. 146,
161 (1964). Beyond this, we cannot fairly say from our
examination of the record that the judge's critical findings were
so clearly mistaken or so plainly unwarranted that the interests
of justice demand intervention and correction. Id. at 162. The
opposite is true.
We also reject the argument that the trial judge's factual
findings were contaminated because he drew an adverse inference
from defendant's failure to produce a witness in support of his
testimony that the Saab was in the repair shop when the car chase
took place. We agree with the judge that it was within
defendant's power to produce such evidence, that such proof would
have been superior to other evidence already presented and not
merely cumulative, and that such evidence was not equally
available to both sides. See Maul v. Kirkman,
270 N.J. Super. 596, 609-10 (App. Div. 1994); Wild v. Roman,
91 N.J. Super. 410,
414 (App. Div. 1966).
Equally unpersuasive is defendant's contention that the
judge erroneously believed defendant had the burden of proving
alibi. Although the judge incorrectly assigned the burden of
proof to defendant at one point in his opinion, he subsequently
corrected the mistake. We discern no prejudice from the judge's
momentary lapse. In sum, we perceive no sound basis to disturb
the judge's factual findings.
We conclude that the Family Part judge erroneously applied the 1994 amendment to pre-amendment acts of domestic violence.See footnote 2 A venerable principle of statutory construction posits that "statutes should not be given retrospective application unless such an intention is manifested by the Legislature in clear terms." Skulski v. Nolan, 68 N.J. 179, 202 (1975). See also South Hamilton Assocs. v. Mayor & Council of the Town of Morristown, 99 N.J. 437, 444 (1985); Gibbons v. Gibbons, 86 N.J. 515, 521-24 (1981) (retrospective application determined); Peper v. Princeton University Bd. of Trustees, 77 N.J. 55, 73 (1978); Rothman v. Rothman, 65 N.J. 219, 224-25 (1974) (retrospective application determined); Alongi v. Schatzman, 57 N.J. 564, 578 (1971); Nickell v. Gall, 49 N.J. 186, 189 (1967); La Parre v.
Young Men's Christian Ass'n of the Oranges,
30 N.J. 225, 229
(1959); In re Borough of Glen Rock,
25 N.J. 241, 249 (1957);
Pennsylvania Greyhound Lines v. Rosenthal,
14 N.J. 372, 381
(1954); Nichols v. Bd. of Education,
9 N.J. 241, 248 (1952);
Kopczynski v. County of Camden,
2 N.J. 419, 424 (1949); Burdett
v. Municipal Employees Pension Comm'n,
129 N.J.L. 70, 72 (E. & A.
1942); Wittes v. Repko,
107 N.J. Eq. 132, 134 (E. & A. 1930);
Frelinghuysen v. Town of Morristown,
77 N.J.L. 493, 496 (E. & A.
1909); Citizens' Gas Light Co. v. Alden,
44 N.J.L. 648, 654 (E. &
A. 1882); Williamson v. New Jersey Southern R.R.,
29 N.J. Eq. 311, 333-34 (E. & A. 1878); City of Elizabeth v. Hill,
39 N.J.L. 555, 558 (Sup. Ct. 1877); Den ex dem. Berdan v. Van Riper,
16 N.J.L. 7, 14-15 (Sup. Ct. 1837). The purpose of this rule is to
give people fair notice of the laws that they are expected to
follow. "`The hackneyed maxim that everyone is held to know the
law, itself a principle of dubious wisdom, nevertheless
presupposes that the law is at least susceptible of being
known.'" Weinstein v. Investors Savings and Loan Ass'n,
154 N.J.
Super. 164, 167 (App. Div. 1977) (quoting 2 Sutherland, Statutory
Construction, §41.02 at 247 (4th ed. 1973)), certif. denied,
75 N.J. 598 (1978). Citizens cannot be expected to obey laws that
have not yet been enacted. Ibid.
Despite its soundness, the principle disfavoring
retrospective application of a statute "is not to be applied
mechanistically to every case." Gibbons v. Gibbons, 86 N.J. at
522 (citing Rothman v. Rothman,
65 N.J. 219, 224 (1974)). Our
Supreme Court has articulated three exceptions to the general
rule against retroactive application of a statute. Id. at 522-23. First, a statute should be applied retroactively where the
Legislature has either explicitly or implicitly expressed such an
intent. Id. at 522 (citing Kruvant v. Mayor of Cedar Grove,
82 N.J. 435, 440 (1980); Howard Savings Institution v. Kielb,
38 N.J. 186, 193-94 (1962); Hohl v. Tp. of Readington,
37 N.J. 271,
279 (1962); Borough of Little Ferry v. Bergen Cty. Sewer Auth.,
9 N.J. 536, 547, cert. denied,
344 U.S. 865,
73 S.Ct. 105,
97 L.Ed.2d 670 (1952)). Second, statutes said to be "ameliorative"
or "curative" may be applied retroactively. Id. at 523 (citing
In re Smigelski,
30 N.J. 513, 527 (1959); 2 Sutherland, Statutory
Construction, §41.11 (4th ed. 1973)). Third, the expectations of
the parties may warrant retroactive application of a statute.
Ibid. Even assuming that one of these exceptions applies,
however, a statute should not be given retroactive application if
it would result in "manifest injustice" to the parties. Ibid.
None of these exceptions is applicable here. The statute
before us does not contain an explicit directive requiring
retrospective application. The amendment merely expands the list
of potential victims of domestic violence to include "any person
who has been subjected to domestic violence by a person with whom
the victim has had a dating relationship." N.J.S.A. 2C:25-19d;
see also Cannel, New Jersey Criminal Code Annotated, comment 4 on
N.J.S.A. 2C:1-2 (1995) (criminal statutes are not to be applied
to persons or conduct beyond the contemplation of the
Legislature).
Nor may we infer a legislative design to apply the amendment
retroactively from the mechanics of its operation or from its
legislative history. To the contrary, other sections of the Act
would be rendered nugatory if the amendment were to be given
retroactive application. For example, N.J.S.A. 2C:25-23 requires
law enforcement officers investigating allegations of domestic
violence to advise victims of their rights under the Act, and
N.J.S.A. 2C:25-24 directs such officers to file domestic violence
reports of such incidents with various state and county agencies.
These sections, and others, that are designed to implement the
protections afforded by the Act obviously can be applied only
prospectively. To accept the argument that the Legislature
intended retrospective application of the amendment but that the
official conduct required by N.J.S.A. 2C:25-23 and N.J.S.A.
2C:25-24 to effectuate the Act can only apply prospectively is to
posit a facial disharmony which, by definition, is at variance
with our responsibility "to give [the statute] the most sensible
interpretation." Gibbons v. Gibbons, 86 N.J. at 522; see also
Strube v. Travelers Indemn. Co. of Illinois,
277 N.J. Super. 236,
244 (App. Div. 1994) (Kestin, J., dissenting), aff'd o.b.,
142 N.J. 570 (1995). Further, the legislative history indicates that
the pre-amendment Act was designed to protect spouses and others
in "a family or family-like setting." N.J.S.A. 2C:25-18. Its
remedies were intended for use by cohabitants, not by people who
were merely dating and thus had readier access to the criminal
law enforcement system.
It is equally clear that the "ameliorative" exception is not
applicable. As we said in Kendall v. Snedeker,
219 N.J. Super. 283 (App. Div. 1987), the "ameliorative" exception "is one which
applies only in a criminal case." Id. at 286. "It is the
reduction of a criminal penalty which constitutes the
amelioration or mitigation and distinguishes such a criminal
statute from a constitutionally prohibited ex post facto [law]
which `imposes a punishment for an act that was not punishable at
the time it was committed, or that imposes additional punishment
to that then prescribed.'" Id. at 286-87 (quoting Matter of
Coruzzi,
95 N.J. 557, 578, app. dism,
469 U.S. 802,
105 S.Ct. 56,
83 L.Ed.2d 8 (1984)) (footnote omitted).
The "curative" exception is also inapposite. Under this
exception, an amendment to a statute can be given retroactive
effect if it is designed merely to carry out or explain the
intent of the original legislation. Id. at 287. Where the
amendment merely clarifies rather than changes the meaning of a
law, it may be applied retroactively "`because the true meaning
of the statute has always been the same.'" Ibid. (quoting
Pacific Intermountain Express v. National Union Fire Ins. Co.,
151 Cal. App.3d 777, 781,
198 Cal. Rptr. 897, 899 (1984)). An
amendment that is designed to remedy a perceived imperfection in
or misapplication of a statute and not to alter the intended
scope or purpose of the original law may be given retroactive
application. Id. at 288. However, the "curative" exception
cannot be invoked merely because an amendment is deemed to
improve a statutory scheme. If this was all that was required,
every amendment would be subject to retroactive application,
because presumably each time the Legislature amends a statute its
intent is to improve the legislation. "To consider an enactment
which `improves' the statutory scheme (in itself a painfully
subjective determination) as [falling within] the curative
exception is at odds with the fundamental principle of fairness
that new laws should not affect situations which predated them."
Id. at 289.
The amendment at issue in the present case expanded the
category of persons eligible for the protection and remedies
granted by the Act. This constituted a clear change in the law
and not an enactment designed to clarify or carry out the intent
of the pre-1994 statute. Id. at 290; see also Brown v. State,
Dept. of Personnel,
257 N.J. Super. 84, 90 (App. Div. 1992). The
original statute was neither unclear nor misapplied. The
amendment does not clarify the old law but instead creates a new
category of protected individuals with substantive and procedural
rights that did not previously exist.
Finally, the reasonable expectations of the parties do not
warrant retrospective application of the amendment. Of course,
we recognize that defendant had no vested right or legitimate
interest in being free from the sanction of the law when engaging
in acts of domestic violence. However, our criminal laws have
long prohibited acts of harassment and stalking. Plaintiff was
thus entitled to the protection of these laws, and defendant was
subject to their commands.See footnote 3
We stress that prospective application of the amendment does
not deny plaintiff standing under the Act. The automobile chase
occurred after the amendment went into effect. To receive the
protections of the amended statute, plaintiff was not required to
have been engaged in a dating relationship with defendant at the
time the act of domestic violence took place. All that is
required by N.J.S.A. 2C:25-19d is that the victim "has had" a
dating relationship with the offender.
Moreover, defendant's history of domestic violence against
plaintiff was properly considered by the judge in determining the
appropriate remedies. N.J.S.A. 2C:25-29a(1) mandates that the
court "shall consider . . . [t]he previous history of domestic
violence between the plaintiff and defendant, including threats,
harassment and physical abuse." We have said, albeit in a
slightly different context, that "[d]omestic violence is a term
of art which defines a pattern of abusive and controlling
behavior injurious to its victims." Peranio v. Peranio,
280 N.J.
Super. 47, 52 (App. Div. 1995); see also Corrente v. Corrente,
281 N.J. Super. 243, 246 (App. Div. 1995). The legislative
findings that undergird the Act, which are set forth in N.J.S.A.
2C:25-18, indicate that the focus of the Legislature "was regular
serious abuse." Peranio v. Peranio, 280 N.J. Super. at 53;
Corrente v. Corrente, 281 N.J. Super. at 247. The drafters did
not intend that the commission of one of the acts designated in
N.J.S.A. 2C:25-19 "automatically would warrant the issuance of a
domestic violence order." Corrente v. Corrente, 281 N.J. Super.
at 248. Instead, "[t]he law mandates that acts claimed by a
plaintiff to be domestic violence must be evaluated in light of
the previous history of domestic violence between [the parties]
. . . ." Ibid. "This requirement reflects the reality that
domestic violence is ordinarily more than an isolated aberrant
act," but generally includes a course of threatening behavior
conducted over a period of time. Ibid. We thus perceive no
error in the admission of evidence relating to defendant's prior
acts of domestic violence. We merely add that such consideration
was not limited to prior adjudications of domestic violence.
Acts of domestic violence not evidenced by a judgment were
properly considered. See Roe v. Roe,
253 N.J. Super. 418, 432
(App. Div. 1992).
Nevertheless, we are constrained to remand the matter to the Family Part for modification of the judgment in several particulars. First, the judge must reconsider the punitive damages award because separate amounts were assessed against defendant for each of the many acts of domestic violence, all but one of which took place before the effective date of the amendment. That portion of the judgment awarding a specific amount of punitive damages corresponding to each separate act of
domestic violence is hereby vacated. On remand, the judge may
award punitive damages only with respect to the August 31, 1994
act of domestic violence. However, the judge is not bound by his
prior itemization. In other words, he may increase the punitive
damages award corresponding to the post-amendment incident to
reflect the history of domestic violence between the parties, as
long as the total amount awarded does not exceed $5,875. The
judge clearly had this ceiling in mind based on his assessment of
the severity of defendant's conduct weighed against his ability
to pay. See Leimgruber v. Claridge Assocs., Ltd.,
73 N.J. 450,
457 (19771). We find no unfairness in permitting such a
restructuring of the punitive damage award both to punish
defendant for his egregious misconduct and to deter him from
committing acts of domestic violence in the future. See Nappe v.
Anschelewitz, Barr, Ansell & Bonello,
97 N.J. 37, 48-49 (1984);
Reeves v. Reeves,
265 N.J. Super. 126, 127-28 (App. Div. 1993);
Sielski v. Sielski,
254 N.J. Super. 686, 689-91 (Ch. Div. 1992);
cf. State v. Rodriguez,
97 N.J. 263, 274-75 (1984); State v.
Espino,
264 N.J. Super. 62, 71-73 (App. Div. 1993).
We also modify that portion of the restraining order
directly prohibiting defendant's parents from having any contact
with plaintiff and her family. While we recognize that
defendant's parents have become embroiled in this dispute, the
fact remains that no complaint was ever filed against them.
Thus, they had no opportunity to file answering pleadings,
present witnesses in their behalf, cross-examine plaintiff's
witnesses or enjoy separate legal representation. N.J.S.A.
2C:25-29a provides specifically that an order under the Act
"shall only restrain or provide damages payable from a person
against whom a complaint has been filed . . . ." N.J.S.A. 2C:25-29a. We are convinced that plaintiff will be sufficiently
protected by an order "forbidding the defendant from personally
or through an agent initiating any communication likely to cause
annoyance or alarm . . .," as provided by N.J.S.A. 2C:25-29b(7).
Such an indirect restraint would also comport with R. 4:52-4,
which provides that restraints are binding not only upon parties
to the action but also upon "such of their officers, agents,
employees, and attorneys, and upon such persons in active concert
or participation with them as receive actual notice of the order
by personal service or otherwise."
We find no merit in defendant's remaining arguments. R. 2:11-3(e)(1)(E). Specifically, we discern no error in the judge's refusal to quash plaintiff's subpoena for production of the sexually explicit photographs or in the judge's decision to seal these items. Defendant's claim that the subpoena impaired his ability to prepare for trial is entirely disingenuous. In addition, the judge's award of compensatory damages and counsel fees was based on the evidence and comported with the Act.
Accordingly, the Family Part's judgment is affirmed in part and reversed in part. The matter is remanded to that court for further proceedings consistent with this opinion.
Footnote: 1In his brief, defendant contended that he had a property
interest in the photographs and thus demanded their return. This
argument was abandoned at oral argument.
Footnote: 2We add for the sake of completeness that stalking was not
one of the offenses listed by the Act as an act of domestic
violence prior to the 1994 amendment. In addition to providing
protection to victims who merely had a dating relationship with
the offender, the amendment added stalking to the list of acts
constituting domestic violence. L. 1994, c. 94, §1. The Family
Part judge found that defendant committed several acts of
stalking prior to the effective date of the amendment. The judge
also assessed punitive damages against defendant based upon those
acts. The retroactive application of this part of the 1994
amendment was never addressed below. Neither party has raised
the question here. In light of our disposition of other issues
in the case, we have no occasion to resolve the question.
Footnote: 3We note that numerous disorderly persons complaints relating to the incidents described in this opinion were tried in the municipal court.