SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5733-95T3
SHARI SMITH,See footnote 1
Plaintiff-Respondent,
v.
ELLEN MOORE,
Defendant-Appellant.
__________________________
Submitted: January 23, 1997 - Decided:
February 14, 1997
Before Judges King and Loftus.
On appeal from the Superior Court of New
Jersey, Chancery Division, Hudson County.
John Gero, attorney for appellant.
Jon Kearney, attorney for respondent.
The opinion of the court was delivered by
KING, P.J.A.D.
This is an appeal from a final restraining order entered
against the defendant under the Prevention of Domestic Violence Act
of 1991, N.J.S.A. 2C:25-17 to -33 (Act). The order was based on a
series of harassing phone calls allegedly made by defendant to
plaintiff from November 1995 through April 1996. N.J.S.A. 2C:33-4(a).See footnote 2 We conclude that the Superior Court Family Part judge did
not have jurisdiction under the Act to enter a restraining order.
The parties did not share a requisite domestic relationship
adequate to predicate jurisdiction under the Act. The offense
should have been prosecuted in municipal court as a disorderly
persons offense. N.J.S.A. 2C:33-4(a).
Plaintiff, age 23, initiated this matter by filing a complaint
in the Kearny Municipal Court on April 24, 1996. The municipal
complaint charged that defendant, age 22, on April 23, 1996 did
"with purpose to harass another, make or cause to be made, a
communication or communications at an extremely inconvenient hours
and in offensively coarse language specifically by calling at 12:15
a.m. Calling the victim `a slut' and told the victim to `fuck
off.'" As a result of this municipal complaint, a plenary hearing
ensued in the Family Part of the Superior Court in Hudson County
on May 2, 1996. N.J.S.A. 2C:25-29(a).
The Family Part judge accepted the veracity of plaintiff's
claims by a preponderance of the evidence, see N.J.S.A. 2C:25-29(a); Roe v. Roe,
253 N.J. Super. 418, 431 (App. Div. 1992), and
entered an appropriate restraining order on May 2, 1996. On this
appeal defendant raises four claims of error: (1) admission of a
tape recording without proper foundation; (2) lack of proper
verification from telephone company; (3) judge unfairly presumed
defendant's guilt, and (4) other trial error was compounded by
defendant's lack of counsel at the hearing.
We find no reversible trial error in the record but are
convinced that the Family Part judge had no jurisdiction; the
events bore no relationship to any past or present domestic
relationship. We perceive this matter as a telephone harassment
case, not a domestic violence case. Jurisdiction was not
questioned at the trial level. Nor is jurisdiction questioned on
appeal. R. 4:6-7; R. 5:1-1. But conscious of the burgeoning
domestic violence case-load in the Superior Court, we conclude that
jurisdictional scrutiny is necessary to insure that the Act is not
trivialized and the Superior Court is not overrun with disorderly
persons cases properly allocable to the municipal courts.See footnote 3
Plaintiff testified on May 2, 1996 that she had known
defendant "approximately a year." Plaintiff and defendant had been
friends and lived at the shore together with other young women on
weekends during June, July and August, in the summer of 1995.
Plaintiff began to date defendant's "ex-boyfriend" at the end of
October 1995.
Plaintiff testified to a series of hostile, threatening and
harassing phone calls from defendant starting in November 1995,
which culminated in the April 23 phone calls, subject of the
complaint filed in the Kearny Municipal Court on April 24. The
subject of the calls was plaintiff's relationship with her current
"boyfriend," Martin M., who was also defendant's "ex-boyfriend,"
since late October 1995. Martin M. testified that he started
dating plaintiff in the fall, about two months after he "broke-off"
with defendant. From this we infer that Martin M. and the
defendant had been dating over the summer of 1995, during the time
plaintiff and defendant were weekend housemates at the shore for
several months.
Jurisdiction turns on the text of N.J.S.A. 2C:25-19(d)
defining a "victim of domestic violence."See footnote 4 For our purposes, the
key words are "a person protected under this act . . . shall
include any person who is 18 years of age or older who is an
emancipated minor and who has been subjected to domestic violence
by . . . any person who is a present or former household member."
We discussed this broad definitional language in the 1991 Act in
Bryant v. Burnett,
264 N.J. Super. 222, 225 (App. Div. 1993), a
case involving a man and a woman who had cohabitated for three
months before the domestic violence erupted. We there concluded
that the jurisdictional predicate "present or former household
member" was easily satisfied, despite the claim by defendant that
the arrangement was temporary and not the establishment of a
permanent household. As John Cannel has observed, the
jurisdictional definition "has given courts some difficulty."
Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A.
2C:25-20 (1996-1997).
Judge Skillman's opinion in Jutchenko v. Jutchenko,
283 N.J.
Super. 17 (App. Div. 1995), demonstrates that there are rational
limits to this very expansive definition of a victim of domestic
violence. The plaintiff and defendant were brothers, age 42 and
47, who had not lived together in the same household for 20 years.
Despite their former status as "household members," we there found
no domestic violence Act jurisdiction because the Act is directed
at "violence that occurs in a family or family-like setting.
N.J.S.A. 2C:28-18." Id. at 20. We said that domestic violence "is
a term of art which defines a pattern of abusive and controlling
behavior injurious to its victims," id. at 20, quoting Peranio v.
Peranio,
280 N.J. Super. 47, 52 (App. Div. 1994). See also
Sperling v. Teplitsky,
294 N.J. Super. 312, 320-21 (Ch. Civ. 1996)
(no domestic relationship for past five years); Sisco v. Sisco, ___
N.J. Super. ___ (Ch. Div. 1996) (no domestic relationship for 15
years between father and daughter). We concluded in Jutchenko that
the Legislature could not have intended the Act to extend to a
dispute between two brothers who had not lived together for 20
years, "at least in the absence of any showing that the alleged
perpetrator's past domestic relationship with the alleged victim
provides a special opportunity for `abusive and controlling
behavior.'" Jutchenko, 283 N.J. Super. at 20. We vacated the
final restraining order.
We find the case before us presents an equally tenuous, if not
absurd, relationship to the purposes of the Act. The harassment
found by the judge, phone calls sparked by jealousy over a
"boyfriend," bore no relationship to the temporary, part-time
seashore vacation housing arrangements which the litigating parties
shared with other young women the prior summer. The dispute
concerns jealousy over the affections of a young man, a scenario
doubtless as old as recorded time but unrelated to any domestic
circumstance among the parties and surely not within the
contemplation of the Legislature as expressed in its findings and
declarations set out in the Act, which are:
The Legislature finds and declares that
domestic violence is a serious crime against
society; that there are thousands of persons
in this State who are regularly beaten,
tortured and in some cases even killed by
their spouses or cohabitants; that a
significant number of women who are assaulted
are pregnant; that victims of domestic
violence come from all social and economic
backgrounds and ethnic groups; that there is a
positive correlation between spousal abuse and
child abuse; and that children, even when they
are not themselves physically assaulted,
suffer deep and lasting emotional affects from
exposure to domestic violence. It is
therefore, the intent of the Legislature to
assure the victims of domestic violence the
maximum protection from abuse the law can
provide.
[N.J.S.A. 2C:28-18.]
The Act did not target harassment by jilted or jealous lovers
barren of any domestic context. We reverse and remand for vacation
of the final restraining order.
Reversed.
Footnote: 1The parties' names are fictitious to preserve privacy. See
Mann v. Mann,
270 N.J. Super. 269 (App. Div. 1993).
Footnote: 2N.J.S.A. 2C:33-4(a) states in pertinent part:
Except as provided in subsection d., a
person commits a petty disorderly persons
offense if, with purpose to harass another,
he:
a. Makes, or causes to be made, a
communication or communications anonymously or
at extremely inconvenient hours, or in
offensively coarse language, or any other
manner likely to cause annoyance or alarm. . .
.
Footnote: 3The number of domestic violence filings in the Superior
Court, Family Part, statewide for the past several years is:
1996 - 62,744
1995 - 63,465
1994 - 55,639
1993 - 53,321
1992 - 48,492
1991 - 36,054
[AOC Superior Court Caseload
Reference Guide 1991-1996.]
Footnote: 4N.J.S.A. 2C:25-19(d) states:
d. "Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. "Victim of domestic violence" also includes any person regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or
with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.