SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued May 2, 2005 -- Decided June 30, 2005
RIVERA-SOTO, J., writing for a unanimous Court.
The Court considers the extent of the authority of New Jersey courts to protect a person, who claims to be a victim of domestic violence in another state and who seeks refuge in New Jersey, from an alleged abuser who has
had no contact with this State.
Plaintiff Gayatri Shah and defendant Mayank K. Shah were married in India
in 2001. Mayank returned to Illinois, where he was licensed to practice medicine,
and Gayatri joined him eighteen months later. After four months, Gayatri left the
marital home and sought refuge with family friends in Bergen County. In August
2003, she filed a complaint against Mayank under the Prevention of Domestic Violence
Act of 1991, N.J.S.A. 2C:25-17 to –33 (Domestic Violence Act or Act). An
ex parte temporary restraining order issued on the filing of the complaint. That
order barred Mayank from Gayatri’s confidential location and prohibited all contact with her,
along with other prohibitory relief. The temporary restraining order also included two forms
of affirmative relief, requiring Mayank to surrender all firearms to the officer serving
the order and requiring Mayank to maintain Gayatri on his health plan.
Subsequently, two amended temporary restraining orders were entered that continued the terms of
the initial order but added additional terms, including that Mayank pay emergent support
and send to Gayatri her work permit, social security card, immigration-related documents and
her personal mail . On September 23, 2003, Gayatri was served in New Jersey
with a complaint for divorce filed by Mayank in Illinois.
In respect of the temporary restraining order, Mayank moved, through counsel, to dismiss
the domestic violence complaint for lack of both subject matter and personal jurisdiction
and on grounds of forum non conveniens. He further moved to stay the
final restraining order hearing, asserting that because he had no contacts whatsoever with
New Jersey, this State's courts could not exercise personal jurisdiction over him. Gayatri
did not challenge Mayank's factual assertions concerning the lack of minimum contacts. The
trial court denied all of Mayank's objections on October 8, 2003, clearing the
path for the final restraining order hearing.
The Appellate Division granted Mayank's motion for leave to appeal and stayed further
proceedings in the trial court. In a published opinion, the panel affirmed in
part and reversed in part, vacated its stay, and remanded to the Family
Part.
373 N.J. Super. 47 (App. Div. 2004). As an overarching proposition, the
panel held that the trial court possessed both subject matter and personal jurisdiction
to issue the protective or prohibitory portions of the temporary restraining order because
Gayatri, "having a lawful presence in New Jersey and residing here, at least
for the time being, is entitled to seek and expect the full protection
of the laws." The panel distinguished, however, between protective or prohibitory relief and
affirmative relief, relying on the principle that a court is without the power
to effect a mandate when it lacks personal jurisdiction over a defendant. Therefore,
to the extent that the orders required Mayank to undertake particular acts, the
panel found that the order could not be enforced in this state. In
respect of that portion of the order requiring Mayank to turn over Gayatri's
papers, the panel described this requirement as having "hybrid qualities" because it "works
to keep plaintiff legally whole and as fully protected by the law as
circumstances permit, as distinguished from factually better off, [therefore] it has some of
the same character as the protective order ...." The panel held that the
trial court possessed the authority to enter the order requiring plaintiff's papers to
be restored to her, but cautioned that the order requiring Mayank to perform
those acts could be enforced only by a court that has personal jurisdiction
over him.
HELD: On the filing of a domestic violence complaint by a plaintiff in
the Family Part of the Chancery Division of the Superior Court in a
county where the alleged violence occurred, where the defendant resides, or where the
plaintiff resides or is sheltered, New Jersey courts have the authority to issue
ex parte relief in the form of a temporary restraining order upon a
showing both that the plaintiff is in danger of domestic violence and that
the temporary restraining order is necessary to protect life, health or well-being. If
personal jurisdiction cannot be exercised over the defendant within constitutional due process limits,
the temporary restraining order may only provide for prohibitory relief, and no final
restraining order may issue. Once issued, an order for emergency, ex parte relief
shall remain in effect until a judge of the Family Part issues a
further order.
1. The purpose of the Domestic Violence Act is to assure victims of
domestic violence the maximum protection from abuse the law can provide. Because it
is remedial in nature, the Legislature directed that the Act be liberally construed
to achieve its salutary purposes. Under the Act, a victim alleging domestic violence
can file a complaint and seek emergency ex parte relief. Pursuant to N.J.S.A.
2C:25-28a, a plaintiff may apply for such relief in a court having jurisdiction
over the place where the alleged act of domestic violence occurred, where the
defendant resides, or where the plaintiff resides or is sheltered. Courts will grant
emergency, ex parte relief in the form of a TRO if there is
a showing that restraints are necessary to protect the life, health or well-being
of a victim. If after conducting a hearing the court concludes that an
act of domestic violence has occurred, the court may provide additional assistance to
the victim. (Pp. 8—9).
2. The Domestic Violence Act permits the filing of a complaint where the
plaintiff resides or is sheltered. N.J.S.A. 2C:25-28a. The logic of that provision is
unassailable: a victim of domestic abuse who seeks a place of refuge must
be able to engage the protections of the law of the jurisdiction in
which he or she is sheltered. New Jersey's approach is consistent with that
of most other jurisdictions. The overwhelming majority of states protect a victim of
domestic violence while he or she is in the state, regardless of where
the abuse occurred. The Court holds, therefore, that New Jersey courts have the
requisite subject matter jurisdiction to adjudicate a domestic violence complaint so long as
one of the statutorily enumerated subject matter jurisdiction conditions is present and the
action is venued either where the alleged act of domestic violence occurred, where
the defendant resides, or where the plaintiff resides or is sheltered. (Pp. 9—14).
3. In Domestic Violence Act matters, New Jersey courts lack the power to
enter an order requiring the performance of any affirmative act by a defendant
over whom in personam jurisdiction cannot be asserted. The Court agrees with the
Appellate Division's distinction between prohibitory orders that serve to protect a domestic violence
victim and affirmative orders that require a defendant to undertake an action. That
distinction is rooted in two separate concepts. The former, which allows the entry
of an order prohibiting acts of domestic violence against a defendant over whom
no personal jurisdiction exists, is addressed not to the defendant but to the
victim: it provides the victim the very protection the law specifically allows and
it prohibits the defendant from engaging in behavior already specifically outlawed. However, in
respect of orders compelling action by a defendant, a court must evaluate the
defendant's minimum contacts and then consider whether the assertion of jurisdiction affects traditional
notions of fair play and substantial justice. Here, because the issuance of a
prohibitory order does not implicate any of Mayank's substantive rights, the trial court
had jurisdiction to enter a temporary restraining order to the extent it prohibited
certain actions in New Jersey. However, no New Jersey court can exercise personal
jurisdiction over Mayank Shah in a manner consistent with due process. It is
conceded that he has zero contacts with the State of New Jersey. (Pp.
15—18).
4. The minimum contacts considerations that forbid the entry of an order granting
affirmative relief against a defendant over whom the court lacks personal jurisdiction also
forbid the entry of a final restraining order within the context of a
domestic violence complaint. A final restraining order must include, by statutory definition, affirmative
relief. In addition, a final restraining order may well have severe collateral consequences,
including registration in a central registry. For these reasons, when personal jurisdiction over
a defendant is lacking, New Jersey courts do not have the power to
enter a final restraining order against that defendant. (Pp. 18—19).
5. The Court rejects the Appellate Division's characterization of the order requiring Mayank
to turn over plaintiff's personal papers as a "hybrid" order. The Court sees
no difference between affirmatively requiring that Mayank turn over documents and requiring that
he pay money to Gayatri. If, consonant with due process, a court lacking
jurisdiction over the person of the defendant cannot order that defendant to pay
money, then it surely follows that the court similarly cannot order that defendant
to take any other affirmative act. (P. 19).
6. Finally, the Court rejects Mayank's arguments that the temporary restraining order must
come to an end at some point. Mayank can easily rid himself of
the temporary restraining order by coming into New Jersey and substantively defending against
the domestic violence complaint. He also can request that both matters be heard
in Illinois. When, as here, a defendant is able, by his voluntary inaction,
to subvert the legal machinery designed to bring about the very closure he
claims to seek, he cannot be heard to complain. Under those circumstances, the
analysis must revert to the language of the Domestic Violence Act, which states
that, once issued, "[a]n order for emergency, ex parte relief . . .
shall remain in effect until a judge of the Family Part issues a
further order." N.J.S.A. 2C:25-28i. (Pp. 20-21).
The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the
matter is REMANDED to the Family Part of the Chancery Division for further
proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in
JUSTICE RIVERA-SOTO's opinion.
SUPREME COURT OF NEW JERSEY
A-
93 September Term 2004
GAYATRI SHAH,
Plaintiff-Respondent,
v.
MAYANK SHAH,
Defendant-Appellant.
Argued May 2, 2005 – Decided June 30, 2005
On appeal from the Superior Court, Appellate Division, whose opinion is reported at
373 N.J. Super. 47 (2004).
Ronald M. Abramson argued the cause for appellant (Kleeblatt, Galler, Abramson & Zakim,
attorneys; Mr. Abramson and Thomas R. McConnell, on the briefs).
Jane A. Herchenroder argued the cause for respondent.
Mary M. McManus argued the cause for amicus curiae Legal Services of New
Jersey (Melville D. Miller, Jr., President, attorney; Ms. McManus and Mr. Miller, on
the brief).
Theresa A. Lyons submitted a brief on behalf of amicus curiae Partners for
Women and Justice (Heer & Lyons, attorneys).
JUSTICE RIVERA-SOTO delivered the opinion of the Court.
In State v. Reyes,
172 N.J. 154, 168-69 (2002), we addressed “whether a
victim of domestic abuse who seeks refuge in this State is entitled to
the protections of the [Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17
to -33] when the abuser enters the State and commits an act of
domestic violence in New Jersey.” This appeal requires that we address an issue
identified but not confronted in Reyes: the extent of the authority of New
Jersey courts to protect a person, who claims to be a victim of
domestic violence in another state and seeks refuge in New Jersey, from an
alleged abuser who has had no contact with this State. Id. at 169
n.3.
We hold that, upon the filing of a complaint by a plaintiff in
the Family Part of the Chancery Division of the Superior Court in a
county “where the alleged act of domestic violence occurred, where the defendant resides,
or where the plaintiff resides or is sheltered,” N.J.S.A. 2C:25-28a, New Jersey courts
have the authority to issue ex parte relief, in the form of a
temporary restraining order, upon a showing both that “the plaintiff is in danger
of domestic violence,” N.J.S.A. 2C:25-28g, and that the temporary restraining order is “necessary
to protect the life, health or well-being of a victim on whose behalf
the relief is sought.” N.J.S.A. 2C:25-28f. If personal jurisdiction cannot be exercised over
the defendant within constitutional due process limits, the temporary restraining order may only
provide for prohibitory relief, and no final restraining order may issue. In that
event, we hold further that, once issued, “[a]n order for emergency, ex parte
relief . . . shall remain in effect until a judge of the
Family Part issues a further order.” N.J.S.A. 2C:25-28i.
In 2001, plaintiff Gayatri Shah and defendant Mayank K. Shah married in India. Shortly after the marriage, defendant returned to Illinois, where he is licensed to practice medicine and, almost eighteen months later, plaintiff joined him there. After four months, plaintiff, who was then pregnant, left the marital home in Illinois and sought refuge with family friends in Bergen County where, on August 22, 2003, she filed a complaint against defendant under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33 (Domestic Violence Act). An ex parte temporary restraining order issued on the filing of the complaint. That ex parte temporary restraining order barred defendant from plaintiff’s “confidential location” and prohibited defendant from (1) “having any oral, written, personal, electronic or other form of contact” with plaintiff; (2) “making or causing anyone else to make harassing communication to” plaintiff; (3) “talking, following or threatening to harm, to stalk or to follow” plaintiff; and (4) “possessing any and all firearms and other weapons.” The order also included two forms of affirmative relief. Defendant was ordered (1) to “immediately surrender [any and all] firearms, weapons, permit(s) to carry, application(s) to purchase firearms and firearms purchaser ID card to the officer serving this Court Order,” and was warned that the “[f]ailure to do so will result in your arrest and incarceration;” and (2) to continue medical coverage for plaintiff under defendant’s health plan. Plaintiff also requested the “return [of] legal documents and social security card,” a prayer for relief that was deferred.
The ex parte temporary restraining order was made returnable for a final hearing on September 4, 2003. Although both plaintiff and her counsel appeared on that date, defendant appeared only through his counsel. The trial court entered an amended temporary restraining order that required that defendant pay plaintiff $500 by September 8, 2003 and further provided that “[a]ll other provisions of the TRO entered on 8/22/03 remain in effect.” See footnote 1 The amended temporary restraining order was then made returnable on September 23, 2003, on which date the trial court entered a second amended temporary restraining order that provided that “[a]ll other provisions of the TRO entered on 8/22/03 and amended TRO entered on 9/4/03 remain in effect,” and further ordered that defendant pay plaintiff “emergent support” of $1,500, to be followed by “an additional $300/wk until final hearing.” It also provided that “[d]efendant, through counsel, shall send the following to plaintiff: [p]laintiff’s work permit, social security card, all immigration related documents and [p]laintiff’s personal mail.” The second amended temporary restraining order was made returnable on October 9, 2003. Coincidentally, also on September 23, 2003, while in New Jersey, plaintiff was served with a complaint for divorce filed by defendant in his home state of Illinois.
Defendant commenced a two-tiered attack on the second amended temporary restraining order. First, he filed a notice of appeal challenging the trial court’s exercise of both subject matter and personal jurisdiction. Second, defendant, through counsel, moved before the trial court to dismiss the domestic violence complaint for want of both subject matter and personal jurisdiction, see R. 4:6-2(a) and (b), and on forum non conveniens grounds, see generally Kurzke v. Nissan Motor Corp., 164 N.J. 159, 164-66 (2000), as well as to stay the final restraining order hearing scheduled for October 9, 2003. Defendant asserted, before both the trial court and the Appellate Division, that because he had no contacts whatsoever with New Jersey, New Jersey’s courts could not exercise personal jurisdiction over him. Plaintiff did not challenge defendant’s factual assertions concerning the lack of minimum contacts.
By an order dated October 8, 2003, the trial court denied all of defendant’s objections, clearing the path for the final restraining order hearing scheduled for the following day. Defendant immediately sought leave to appeal from the denial of his motion to dismiss and, therefore, the trial court adjourned its hearing on the final restraining order until October 20, 2003, continued in effect “[a]ll provisions of the Temporary Restraining Order entered on 8/22/03 [and] amended TRO’s of 9/4/03 [and] 9/23/03,” and noted that there would be “no further adjournments.” On October 20, 2003, defendant sought emergent relief from the Appellate Division. That same day, the Appellate Division granted defendant’s motion for leave to appeal, consolidated defendant’s appellate applications, and ordered that “[a] stay is granted of any further proceedings in the trial court pending disposition of the appeal or the further order of the court, except that the temporary order remains in effect pending the appeal.”
In a published opinion, the Appellate Division affirmed in part and reversed in part the second amended temporary restraining order, vacated its stay, and remanded the cause to the Family Part. Shah v. Shah, 373 N.J. Super. 47 (App. Div. 2004). As an overarching proposition, the panel held that the trial court possessed both subject matter and personal jurisdiction to issue the protective or prohibitory portions of the second amended temporary restraining order because “plaintiff, having a lawful presence in New Jersey and residing here, at least for the time being, is entitled to seek and expect the full protection of our laws.” Id. at 52. The panel reasoned that once “a factual basis [to the domestic violence complaint] is found to exist, the court must be seen to have the authority to enter any reasonable order required to protect plaintiff’s safety and her personal integrity[,]” concluding that “[t]his State’s lack of jurisdiction over defendant’s person cannot be seen as a reason for denying or limiting plaintiff in respect of the protections our laws afford to her.” Ibid.
The Appellate Division then distinguished between the propriety of issuing protective or prohibitory relief versus affirmative relief, noting that “[i]t is another thing entirely, however, to enter an order that acts upon defendant personally, in the sense of imposing affirmative obligations on him, in the absence of any conduct on his part subjecting himself to the jurisdictional sway of this State.” Ibid. The panel grounded that distinction on the principle that “a court is without the power to effect a mandate when it lacks personal jurisdiction over defendant.” Id. at 53. The panel explained that
[t]he portion of the trial court’s order that requires defendant to turn over plaintiff’s personal papers - her work permit, social security card, immigration documents and mail - has hybrid qualities, however. In the sense that it works to keep plaintiff legally whole and as fully protected by the law as circumstances permit, as distinguished from factually better off, it has some of the same character as the protective order, and is authorized by a sensibly remedial application of the authority conferred in N.J.S.A. 2C:25-29b(12). To the extent such an order acts upon defendant to require him to undertake particular acts, however, it cannot, either as a matter of law or practicality, be specifically enforced in this State.
[Ibid. (citation omitted).]
The panel held “that the trial court possessed the authority to enter the
order requiring plaintiff’s papers to be restored to her,” reasoning that “the particular
mandate was, in the circumstances, well within the trial court’s discretion . .
. .” Id. at 53-54. Although it endorsed the trial court’s power to
issue this hybrid order, the Appellate Division cautioned that “that order can be
enforced to require defendant to perform the acts mandated only by a court
that has personal jurisdiction over him.” Id. at 54 (emphasis supplied).
We originally granted defendant’s petition for certification.
182 N.J. 630 (2005). However, because
defendant sought review of an interlocutory judgment and on our own motion, we
vacated the grant of certification and, treating defendant’s petition for certification as an
application for leave to appeal, see, e.g., Butler v. Bonner & Barnewall, Inc.,
56 N.J. 567, 573 n.3 (1970), granted defendant leave to appeal the interlocutory
disposition of the Appellate Division.
183 N.J. 259 (2005). We also granted amicus
curiae status to Legal Services of New Jersey (LSNJ) and to Partners for
Women and Justice (Partners).
A.
In State v. Reyes, 172 N.J. 154, 160-61 (2002), we explained the purposes of the Domestic Violence Act as follows:
The Legislature enacted the Domestic Violence Act “to assure victims of domestic violence the maximum protection from abuse the law can provide.” Because it is remedial in nature, the Legislature directed that the Act be liberally construed to achieve its salutary purposes.
The [Domestic Violence] Act defines domestic violence as the occurrence of one or
more predicate offenses against a person protected under the Act. . . .
. Under N.J.S.A. 2C:25-28a, a victim alleging the commission of an act of
domestic violence can file a complaint and seek emergency ex parte relief. A
plaintiff may apply for such relief “in a court having jurisdiction over the
place where the alleged act of domestic violence occurred, where the defendant resides,
or where the plaintiff resides or is sheltered, and the court shall follow
the same procedures applicable to other emergency applications.” Pursuant to that provision, courts
will grant emergency, ex parte relief in the form of a TRO if
“there is a showing that restraints are necessary to protect the life, health
or well-being of a victim.” If after conducting a hearing the court concludes
that an act of domestic violence has occurred, the court may provide additional
assistance to the victim.
[(citations omitted).]
Because Reyes also thoughtfully marshaled the strong public policy considerations that undergird both
the Domestic Violence Act as well as the decisional authority resulting from it,
id. at 163-64, we need not address them again here. Instead, we turn
directly to the assertions of the parties and amici in this case.
Defendant has never set foot in New Jersey, either literally or figuratively. Based on defendant’s utter lack of contact with this State, he asserts that New Jersey courts lack both subject matter and in personam jurisdiction over him sufficient to allow a final restraining order hearing to proceed. Although defendant concedes that New Jersey courts have jurisdiction to issue ex parte temporary restraining orders upon the filing of a domestic violence complaint, defendant maintains that, in addition to defeating any attempt to secure a final restraining order, New Jersey’s want of jurisdiction over him also requires that the temporary restraining order, although properly entered in the first instance, must be vacated. See footnote 2
Plaintiff recognizes the constitutional limitations imposed on the exercise of in personam jurisdiction. She argues, however, that the distinction drawn by the Appellate Division is both constitutional and entirely consonant with the purposes of the Domestic Violence Act: protective or prohibitory restraints (or, in some instances, “hybrid” restraints) are permissible, but affirmative obligations cannot be entered in the absence of personal jurisdiction over the defendant.
Amicus curiae LSNJ, while largely echoing the arguments advanced by plaintiff, asserts that New Jersey courts have jurisdiction over defendant for two additional reasons. First, LSNJ claims that, because defendant’s purposeful actions in Illinois had consequences in New Jersey, New Jersey courts can and should exercise personal jurisdiction over defendant. Second, LSNJ endorses the Appellate Division’s dichotomy between protective or prohibitory orders of protection and those orders of protection that require the performance of affirmative acts by a defendant, claiming that the former can be entered in the absence of personal jurisdiction under the “status exception” to personal jurisdiction. See DYFS v. M.Y.J.P., 360 N.J. Super. 426, 458 (App. Div.), certif. denied, 177 N.J. 575 (2003) (holding foreign mother’s conduct “subjected her parental status to the jurisdictional sway of this State under the status exception, notwithstanding that she, herself, has never been present here”).
Finally, amicus curiae Partners underscores the limited and emergent nature of the relief to be afforded under the Domestic Violence Act as well as the strong public policies that support it. Partners surveyed parallel statutory enactments nationwide and offers that survey as a basis for comparison and decision.
A.
We address first whether there was proper subject matter jurisdiction in New Jersey for this domestic violence action or whether, as defendant asserts, this action should have been brought only in Illinois. We highlight that the Domestic Violence Act specifically provides that a domestic violence complaint can be brought “in a court having jurisdiction over the place . . . where the plaintiff resides or is sheltered.” N.J.S.A. 2C:25-28a; See footnote 3 see also State v. Reyes, 172 N.J. 154, 161 (2002). The fundamental logic of that statutory provision is unassailable: a victim of domestic abuse who seeks a place of refuge must be able to engage the protections of the law of the jurisdiction in which she is sheltered. To state otherwise flies in the face of plain common sense. We made that point clearly in State v. Reyes, supra, when we explained that “[o]ur holding today would not change even in the absence of defendant’s harassing conduct in New Jersey.” 172 N.J. at 167. Our approach is consistent with that of most other jurisdictions.
Although two states statutorily prohibit the filing of a domestic violence complaint against a non-resident defendant when there has been no proof of any in-state domestic violence, see Ga. Code Ann. § 19-13-2 (2004); 750 Ill. Comp. Stat. Ann. 60/208 (West 2005), the overwhelming majority of states protect a victim of domestic violence while she is in the state, regardless of where the abuse occurred. See footnote 4 This is so for a patently salutary purpose: a state has the legitimate right to protect anyone within its borders from abuse regardless of the geographical source of the abuse. North Dakota, for example, specifically provides that
a court may issue a domestic violence protection order . . . even though the actions constituting domestic violence occurred exclusively outside the state. In these cases, a respondent is subject to the personal jurisdiction of this state upon entry into this state. If the domestic violence justifying the issuance of a protection order . . . occurred exclusively outside the state, the relief that may be granted is limited to an order restraining the party from having contact with or committing acts of domestic violence on another person in this state.
[N.D. Cent. Code § 14-07.1-02(9) (2005).]
The residents of New Jersey rightly should expect no less from their State,
and the State of New Jersey can do no less for its residents
who seek the protection of its laws. Consistent with the express terms of
our own statute and the broad protections it provides for victims of domestic
abuse, we hold that, as long as one of the statutorily enumerated subject
matter jurisdiction conditions precedent to the filing of a domestic violence complaint is
present and the action is venued either “where the alleged act of domestic
violence occurred, where the defendant resides, or where the plaintiff resides or is
sheltered,” N.J.S.A. 2C:25-28a, New Jersey courts have all requisite subject matter jurisdiction to
adjudicate a complaint seeking relief under the Domestic Violence Act.
A determination that plaintiff was entitled to bring her domestic violence complaint in New Jersey does not, however, answer the question raised here, that is, if personal jurisdiction cannot be exercised over the defendant, what limitations, if any, exist on the power of the court to grant temporary or final relief in a domestic violence case. In that respect, we agree with the distinction made by the Appellate Division between prohibitory orders that serve to protect the domestic violence victim, and affirmative orders that require that a defendant undertake an action. That distinction is rooted in two separate concepts. The former, which allows the entry of an order prohibiting acts of domestic violence against a defendant over whom no personal jurisdiction exists, is addressed not to the defendant but to the victim: it provides the victim the very protection the law specifically allows, and it prohibits the defendant from engaging in behavior already specifically outlawed. Because the issuance of a prohibitory order does not implicate any of defendant’s substantive rights, the trial court had jurisdiction to enter a temporary restraining order to the extent it prohibited certain actions by defendant in New Jersey.
A different result obtains, however, when a court attempts to exercise its coercive power to compel action by a defendant over whom the court lacks personal jurisdiction. Although we have made clear that “a state may regulate conduct occurring outside its borders,” we have also made clear that
the test for “due process requires only that in order to subject a defendant to a judgment in personam, if he [or she] be not present within the territory of the forum, he [or she] have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, [ 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945)] (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)). Those unchanging commands of due process govern every foray into the realm of long-arm jurisdiction over non-residents. Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 452 (App. Div. 1989) (citing Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971)).
[Blakey v. Cont’l Airlines, Inc.,
164 N.J. 38, 66 (2000).]
The analytical stricture is straightforward. “The first step is to determine whether defendants
have had the requisite minimum contacts with New Jersey. We evaluate the minimum
contacts of a defendant on a case-by-case basis.” Ibid. (citation omitted). In so
doing, we
focus on “the relationship among the defendant, the forum, and the litigation.” The
“minimum contacts” requirement is satisfied so long as the contacts resulted from the
defendant’s purposeful conduct and not the unilateral activities of the plaintiff.
“This ‘purposeful availment’ requirement ensures that a defendant will not be haled into
a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” The
question is whether “the defendant’s conduct and connection with the forum State are
such that he should reasonably anticipate being haled into court there.
[Lebel v. Everglades Marina, Inc.,
115 N.J. 317, 323-24 (1989) (citations omitted) (cited
in Blakey v. Cont’l Airlines, Inc., supra, 164 N.J. at 67).]
Once an examination of the defendant’s minimum contacts with the State is complete,
the policy question whether “the assertion of jurisdiction affect[s] traditional notions of fa
ir
play and substantial justice
[,]” Blakey v. Cont’l Airlines, Inc., supra, 164 N.J. at
69, must be addressed. That requires the consideration of a number of factors
that comprise “the flip-side of the purposeful availment doctrine, [that is] whether the
offending party could reasonably anticipate that the forum state would have a substantial
interest in vindicating the personal rights of the injured party.” Ibid.
Under the circumstances present here, no New Jersey court can exercise personal jurisdiction
over defendant in a manner consonant with due process. It is conceded that
defendant has zero contacts with the State of New Jersey. Thus, he has
not “purposefully availed” himself of the laws of New Jersey. Indeed, this case
presents the very circumstances condemned in Lebel v. Everglades Marina, Inc., supra, 115
N.J. at 323: “The ‘minimum contacts’ requirement [cannot be] satisfied [by] the unilateral
activities of the plaintiff.” Viewed that way, there can be no doubt that
subjecting defendant to a final order in New Jersey would “offend ‘traditional notions
of fair play and substantial justice.’” Blakey v. Cont’l Airlines, Inc., supra, 164
N.J. at 66 (citing Int’l Shoe Co. v. Washington, supra, 326 U.S. at
316, 66 S. Ct. at 158, 90 L. Ed. at 102). Therefore, in
Domestic Violence Act matters, New Jersey courts lack the power to enter an
order requiring the performance of any affirmative act by a defendant over whom
in personam jurisdiction cannot be asserted.
See footnote 5
The minimum contacts considerations that forbid the entry of an order granting affirmative relief against a defendant over whom the court lacks personal jurisdiction also forbid the entry of a final restraining order within the context of a domestic violence complaint. A final restraining order must, by statutory definition, include affirmative relief. See, e.g., N.J.S.A. 2C:25-29b (requiring the surrender of firearms and permits), -29.1 (requiring the payment of a civil penalty) and -29.4 (requiring the payment of a surcharge). In addition, a final restraining order may well have severe collateral consequences, including registration in a central registry, N.J.S.A. 2C:25-34, a registration that is not subject to expungement. In re M.D.Z., 286 N.J. Super. 82 (App. Div. 1995). For those reasons, we also hold that when personal jurisdiction over a defendant is lacking, New Jersey courts do not have the power to enter a final restraining order against that defendant.
That said, although we endorse the distinction drawn by the Appellate Division between prohibitory and affirmative orders, we reject the panel’s characterization of that “portion of the trial court’s order that requires defendant to turn over plaintiff’s personal papers -- her work permit, social security card, immigration documents and mail” as a “hybrid.” Shah v. Shah, 373 N.J. Super. 47, 53 (App. Div. 2004). We see no principled difference between affirmatively requiring that defendant turn over documents, albeit documents with legal significance to plaintiff, and requiring that defendant pay money to plaintiff. If, consonant with due process, a court wanting jurisdiction over the person of a defendant cannot order that defendant to pay money, then it surely follows that the court similarly cannot order that defendant to take any other affirmative act. See footnote 6
Defendant’s final argument remains. According to defendant, even if a temporary restraining order of some form is properly entered in the absence of personal jurisdiction over the defendant, it must come to an end at some point due to its very nature as a temporary order. Thus, reasons defendant, because the trial court is required to hold a hearing “within 10 days of the filing of a complaint [under the Domestic Violence Act] in the county where the ex parte restraints were ordered,” N.J.S.A. 2C:25-29a, temporary restraining orders cannot continue without end.
There is, no doubt, a superficial appeal to defendant’s plea. That appeal, however, does not withstand close scrutiny. Much like the incarcerated civil contemnor who “carries the keys to freedom in his willingness to comply with the court’s directive,” Catena v. Seidl, 68 N.J. 224, 232 (1975) (Schreiber, J., dissenting) (citing Green v. United States, 356 U.S. 165, 197, 78 S. Ct. 632, 650, 2 L. Ed.2d 672, 696 (1958) (Black, J. dissenting)), defendant easily can rid himself of the entire parade of horribles he cites as flowing from the continued pendency of the temporary restraining order: he can either come into New Jersey and substantively defend against the domestic violence complaint, or he can request that both matters -- the divorce action and the domestic violence complaint – be heard in Illinois and seek a resolution favorable to him there. What defendant disingenuously urges simply cannot be done: we cannot, at defendant’s whim, deny plaintiff the protection against domestic violence the Legislature intended, particularly when defendant is not prejudiced by the continued pendency of an order that requires that he do absolutely nothing.
The time strictures of N.J.S.A. 2C:25-29a do not envision circumstances such as those present here. On the contrary, N.J.S.A. 2C:25-29a addresses a timetable that permits both plaintiffs and defendants to seek a prompt resolution of the domestic violence complaint. When, as here, a defendant is able, by his voluntary inaction, to subvert the legal machinery designed to bring about the very closure he claims to seek, he cannot be heard to complain. Under those circumstances, the analysis must revert to the language of the Domestic Violence Act, which states that, once issued, “[a]n order for emergency, ex parte relief . . . shall remain in effect until a judge of the Family Part issues a further order.” N.J.S.A. 2C:25-28i.
In sum, we hold that, upon the filing of a complaint by a plaintiff “alleging the commission of an act of domestic violence with the Family Part of the Chancery Division of the Superior Court [venued either] in a court having jurisdiction over the place where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered,” N.J.S.A. 2C:25-28a, New Jersey courts have the authority to issue ex parte relief, in the form of a temporary restraining order, upon a showing both that “the plaintiff is in danger of domestic violence,” N.J.S.A. 2C:25-28g, and that the temporary restraining order is “necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought.” N.J.S.A. 2C:25-28f. We further hold that, if personal jurisdiction cannot be exercised over a defendant within constitutional due process limits, the temporary restraining order may only provide for prohibitory relief, and no final restraining order may issue. Finally, in the event personal jurisdiction cannot be exercised over a defendant, we also hold that, once issued, “[a]n order for emergency, ex parte relief . . . shall remain in effect until a judge of the Family Part issues a further order.” N.J.S.A. 2C:25-28i. See footnote 7
As modified by this opinion, the judgment of the Appellate Division is affirmed and the matter is remanded to the Family Part of the Chancery Division for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-93 SEPTEMBER TERM 2004
ON REMAND FROM Appellate Division, Superior Court
GAYATRI SHAH,
Plaintiff-Respondent,
v.
MAYANK SHAH,
Defendant-Appellant.
DECIDED June 30, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice Rivera-Soto
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
That interim support order appears to have been in exchange for the
adjournment of the final restraining order hearing to allow defendant’s counsel sufficient time
to file a motion to dismiss the domestic violence complaint for want of
subject matter and personal jurisdiction.
Footnote: 2
Defendant also asserts a forum non conveniens argument, claiming that, because all
of the witnesses are in Illinois, plaintiff has commenced an action for divorce
in Illinois, and domestic violence complaints are cognizable before the Illinois courts, the
proper forum for this domestic violence matter is Illinois, not New Jersey. Because
we agree with the Appellate Division’s finding that, “in the light of our
resolution of the other issues in the matter, [that issue is] without sufficient
merit to warrant separate discussion[,]” Shah v. Shah,
373 N.J. Super. 47, 54
(App. Div. 2004), we also do not address defendant’s forum non conveniens argument.
Footnote: 3
New Jersey’s domestic violence venue provisions are similar to those of fifteen
other states which also protect domestic violence victims either where they reside or
where they are temporarily sheltered. See Ala. Code § 30-5-3(c) (2005); Del. Code Ann.
tit. 10, § 1042 (2005); Idaho Code § 39-6304(b) (Michie 2004); Ind. Code Ann. § 34-26-5-4(b)
and (c) (West 2005); Mass. Gen. Laws Ann. ch. 209A, § 2 (West 2005);
Minn. Stat. Ann. § 518B.01 (West 2005); Mont. Code. Ann. § 40-15-301 (2003); N.H. Rev.
Stat. Ann. § 173-B:3.I (2005); N.M. Stat. Ann. § 40-13-3 (Michie 2005); R.I. Gen. Laws
§ 15-15(2) (2004); Tex. Fam. Code Ann. § 82.003 (Vernon 2002); S.C. Code Ann. § 20-4-30(B)
(Law. Co-op.2004); Vt. Stat. Ann. tit. 15, § 1102(c) (2004); Wash. Rev. Code Ann.
§ 26.50.020(6) (West 2005); W. Va. Code § 48-27-302 (2005); Wyo. Stat. Ann. § 35-21-102(ii) and
-103(a) (Michie 2004).
Footnote: 4
In contrast to the sixteen states -- including New Jersey -- that
protect a domestic violence victim wherever sheltered, seventeen states require that the plaintiff
in a domestic violence complaint be a resident of the State. See Ark.
Code Ann. § 9-15-201(b) (Michie 2005); Colo. Rev. Stat. Ann. § 14-4-106 (West 2005); Haw.
Rev. Stat. Ann. § 586-2 (Michie 2004); Ky. Rev. Stat. Ann. § 403.725 (Banks-Baldwin 2004);
La. Rev. Stat. Ann. § 2133 (West 2004); Me. Rev. Stat. Ann. tit. 19-A,
§ 4003 (West 2004); Mo. Ann. Stat. § 455.015 (West 2005); N.Y. Fam. Ct. Act
§ 818 (McKinney 2005); N.C. Gen. Stat. § 50B-2(a) (2005); N.D. Cent. Code § 14-07.1-02 (2005);
Okla. Stat. Ann. tit. 22, § 60.2A.1 (West 2005); Or. Rev. Stat. § 107.728 (2004);
S.D. Codified Laws § 25-10-2 (Michie 2005); Tenn. Code Ann. § 36-3-602 (2005); Tex. Fam.
Code Ann. § 82-003 (Vernon 2002); Utah Code Ann. § 30-6-3(2) (2004); Va. Code Ann.
§ 16.1-243A.3 (Michie 2004).
Sixteen states are silent as to both venue and personal jurisdiction in domestic
violence matters. See Alaska Stat. § 18.66.100 (Michie 2004); Ariz. Rev. Stat. Ann. § 13-3602A
(West 2005); Cal. Fam. Code § 6301 (West 2004); Conn. Gen. Stat. Ann. § 46b-15
(West 2005); D.C. Code Ann. § 16-1001(b)(B) (2005); Fla. Stat. Ann. § 741.30(j) (West 2005);
Iowa Code Ann. § 236.3 (West 2005); Kan. Stat. Ann. § 60-3103 (2004); Md. Code
Ann., Fam. Law § 4-501 (2002); Mich. Comp. Laws Ann. § 600.2950 (West 2005); Miss.
Code Ann. § 93-21-7 (2004); Neb. Rev. Stat. § 25-2740 (2004); Nev. Rev. Stat. § 3.223
(2004); Ohio Rev. Code Ann. § 3113.31 (West 2005); 23 Pa. Cons. Stat. Ann.
§ 6106 (West 2005); Wis. Stat. Ann. § 767.01 (West 2005). This category of States
default to their general venue provisions.
In either of these latter two categories, and for the constitutional reasons described
below, infra, ___ N.J. ___ (2005) (slip op. at 15-18), personal jurisdiction over
a non-resident defendant can only be exercised in a manner consistent with the
constitutionally limited reach of that State’s long-arm jurisdiction.
Footnote: 5
We are unpersuaded by the “status exception” cases LSNJ claims permit the
assertion of personal jurisdiction over defendant in these circumstances. Each of the New
Jersey cases relied upon by LSNJ is, although consistent with one another, basically
different from this case: each such
case
deals with either child custody or
the termination of parental rights where the res of the dispute -- the
children -- are located in New Jersey. See DYFS v. M.Y.J.P.,
360 N.J.
Super. 426 (App. Div.), certif. denied,
177 N.J. 575 (2003) (termination of parental
rights); Matsumoto v. Matsumoto,
335 N.J. Super. 174 (App. Div. 2000), aff’d as
modified,
171 N.J. 110 (2002) (custody); Schuyler v. Ashcraft,
293 N.J. Super. 261
(App. Div. 1996), certif.
denied,
147 N.J. 578 (1997) (custody); Genoe v. Genoe,
205 N.J. Super. 6 (App. Div. 1985) (custody).
Footnote: 6
At oral argument, counsel advised that the question of whether defendant should
have turned over to plaintiff her “work permit, social security card, all immigration
related documents and [her] personal mail” is moot.
Footnote: 7
Should a court outside New Jersey, having both subject matter jurisdiction over
a domestic abuse complaint and personal jurisdiction over plaintiff and defendant, and which
provides defendant reasonable notice and an opportunity to be heard, issue an order
adjudicating the domestic violence complaint, that order is afforded full faith and credit,
can be domesticated in New Jersey and, based on it, a judge of
the Family Part is authorized to issue the “further order” required by N.J.S.A.
2C:25-28i. Section 1 of Article IV of the Constitution of the United States
provides that “Full Faith and Credit shall be given in each State to
the . . . judicial Proceedings of every other State; And the Congress
may by general Laws prescribe the Manner in which such . . .
shall be proved, and the Effect thereof.” U.S. Const. art. IV, §1. Consistent
with that constitutional mandate, the “general Law” adopted by Congress regarding the domestication
of foreign protection orders clearly states that “[a]ny protection order issued . .
. by the court of one State or Indian tribe . . .
shall be accorded full faith and credit by the court of another State
or Indian tribe (the enforcing State or Indian tribe) and enforced as if
it were the order of the enforcing State or tribe.”
18 U.S.C. §2265(a).