D.M.L. v. D.A.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1146-05T11146-05T1

D.M.L.,

Plaintiff-Respondent,

v.

D.A.A.,

Defendant-Appellant.

 

Submitted: June 20, 2006 - Decided July 20, 2006

Before Judge Stern and Fall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Number FV-15-626-06.

Evan F. Nappen, attorney for appellant.

DeVincens & Associates, attorneys for respondent (Eli L. Eytan, on the brief).

PER CURIAM

Defendant D.A.A. appeals from entry of a final restraining order issued against him in the Family Part in favor of plaintiff D.M.L. on September 22, 2005, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm. The following factual and procedural history and analysis informs our decision.

On September 15, 2005, pursuant to N.J.S.A. 2C:25-28a, plaintiff filed a domestic violence complaint against defendant, alleging that at approximately 6:00 a.m. on that date, defendant committed an act of sexual assault against her, contrary to N.J.S.A. 2C:14-2 and defined as "domestic violence" pursuant to N.J.S.A. 2C:25-19a(7), stating: "Defendant came into the living room of plaintiff's residence and while she was sleeping defendant stuck his fingers into plaintiff's vagina."

Under the portion of the complaint that inquired as to whether there was any prior history of domestic violence, the "no" box was checked. The complaint alleged that defendant is her "step father-in-law," that there is a "family relationship," that he was a present household member, and that they had previously resided together. Based on the allegations contained in the complaint, a municipal court judge issued a temporary restraining order (TRO) in favor of plaintiff and scheduled a final hearing for September 22, 2005, in the Family Part.

The final hearing was conducted in the Family Part on September 22, 2005 before Judge E. David Millard. Defendant was represented by counsel at that hearing; plaintiff was not.

Plaintiff testified that on September 15, 2005, she was living in defendant's home in Brick Township, along with her mother-in-law, her husband and her son. She stated she had lived in that residence for approximately the previous seven years. Plaintiff stated that she had fallen asleep on the couch when she was awakened by someone touching her legs and vagina underneath her nightgown. She identified defendant as the person who had been touching her, stating that he had placed his finger inside her vagina and then had stopped when she moved.

Plaintiff also testified that approximately thirteen months previously, there were numerous times when defendant would come into her room in the morning, after defendant's wife had left for work, and, while plaintiff was sleeping, had touched her "butt, the legs, the vagina." She explained that each time she would wake up to him touching her, that he would be lying in her bed, she would move, he would stop and then leave the room. Plaintiff stated that after she and her husband had confronted defendant concerning this behavior, he stopped, so she "thought it was over."

Upon plaintiff testifying to the prior incidents, the trial judge stated:

All right. Counsel, before we start the cross-examination, I'm going to, pursuant to [H.E.S. v. J.C.S., 175 N.J. 309 (2003)], amend the complaint to reflect a prior history. She's testified to a prior history of . . . prior acts of sexual contact and assault over the past 13 months, indicating the defendant would enter her bedroom and touch her breasts and private area, sometimes while lying in her bed. Now, counsel, if you request an adjournment to meet those additional charges or additional allegations or would like to discuss them, either to take a continuance here to discuss them with your client or, as I said, an adjournment to meet that additional information, I will grant you that request. You have a right to that.

The judge and counsel for defendant then engaged in the following colloquy:

COUNSEL: Judge, I appreciate Your Honor's courtesy but, quite frankly, it wasn't unanticipated with respect to the way these cases go. So I wouldn't be fair to represent that I need that.

JUDGE: I'm not sure what you mean by the way these cases go. This is not - -

COUNSEL: Well, with the nature of --

JUDGE: This is nothing -- this is not what I would call a routine, ordinary, standard type of matter.

COUNSEL: Well, I guess it's --

JUDGE: I just want to be certain if your client wishes -- if you wish to discuss these charges or these additional -- this additional information with your client before proceeding, you have an absolute right to do that.

COUNSEL: Right.

JUDGE: I will suspend the proceedings to allow you to discuss it with him. And if you want an adjournment to another date, I'll grant that, as well.

COUNSEL: No, we're ready to proceed.

Defense counsel then proceeded to cross-examine plaintiff. Plaintiff explained that she, her husband and child lived in the downstairs portion of defendant's residence, that defendant and his wife lived in the upstairs portion of the dwelling, and that she had the ability to shut the door between the upstairs and downstairs portions and lock it. Plaintiff also stated that she and her son had moved from defendant's residence following the September 15, 2005 incident and were living with her sister.

At the conclusion of plaintiff's testimony, defendant's counsel stated, "[o]bviously, Judge, we rest. We don't have any witnesses and we'll submit." In entering a final restraining order against defendant, Judge Millard stated, in pertinent part:

The court notes and recognizes that this is a civil proceeding. The standard of proof is a preponderance of the evidence standard. And I'm satisfied, based upon the civil preponderance of the evidence standard, that [plaintiff] has established the elements of the offense of sexual assault and criminal sexual contact, that there is a need for entry of a domestic violence final restraining order under the facts of this case and I intend to issue a final restraining order.

After making his findings, Judge Millard issued a final restraining order, prohibiting defendant from, inter alia, having any contact with plaintiff or her son.

On appeal, defendant presents the following arguments for our consideration:

POINT 1

THE COURT BELOW ERRED IN FAILING TO FIND THAT THE PLAINTIFF QUALIFIES AS A "VICTIM OF DOMESTIC VIOLENCE" AS DEFINED BY [N.J.S.A.] 2C:25-19.

POINT 2

APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE NO DEFENSE WAS PRESENTED: THE APPELLANT NEVER WAIVED HIS RIGHT TO TESTIFY WITH IMMUNITY; NO WITNESSES WERE PRESENTED ON HIS BEHALF; NO CLOSING ARGUMENT FOR NON-ISSUANCE WAS PRESENTED AND PRIOR COUNSEL SIMPLY SUBMITTED AFTER ONLY THE RESPONDENT TESTIFIED.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

The issue of the sufficiency of the court's jurisdiction to proceed with the domestic violence complaint was never raised or questioned by defendant. Moreover, even if the jurisdictional issue had been raised in the Family Part, the record fully supports the conclusion that plaintiff was a "present or former household member[]" of defendant at the time the domestic violence incident occurred, N.J.S.A. 2C:25-19d, in that they resided in the same dwelling. Although separated by upstairs and downstairs living quarters, the testimony of plaintiff adequately demonstrates that this is a single-family residence and that defendant spent frequent time in the downstairs portion of the house occupied by plaintiff, her husband, and son. We have made it clear that where the relationship between the parties and their living arrangements provides a special opportunity for abusive or controlling behavior, jurisdiction properly lies under the Act. See Jutchenko v. Jutchenko, 283 N.J. Super. 17, 20 (App. Div. 1995). See also Storch v. Sauerhoff, 334 N.J. Super. 226, 232-34 (Ch. Div. 2000); South v. North, 304 N.J. Super. 104, 109 (Ch. Div. 1997).

We also reject defendant's contention that because he was provided ineffective assistance of trial counsel we should reverse and remand the matter to the Family Part. This is a civil case. However, even if the ineffective-assistance claim were cognizable, defendant has failed to make a prima facie showing of ineffective assistance of counsel in accordance with the standards set forth in Strickland v. Washington, 466 U.S. 668, 687 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), where the Court stated:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

N.J.S.A. 2C:25-29a provides that "testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable." On appeal, defendant argues that because this section of the statute provides "protection against collateral self-incrimination," defense counsel had no reason not to call defendant as a witness. The record reflects otherwise. Although the matter had been reported to the police, the record does not reflect an ongoing criminal investigation. Rather, it reflects an ongoing investigation by the New Jersey Division of Youth and Family Services (DYFS), as testified to by plaintiff. An equally plausible reason for not testifying could have been not to volunteer information that DYFS could have access to in its ongoing investigation as to whether the child should be civilly protected from defendant, or his wife the child's maternal grandmother on issues of visitation or other access to the child. More significantly, defendant has failed to demonstrate that, but for the purported ineffective assistance of counsel, the result would have been different.

Moreover, since this "ineffective assistance" issue is raised for the first time on appeal, we have no record on which to properly evaluate it, even if cognizable. Defendant chose to file this appeal instead of a motion for reconsideration in the Family Part, for relief pursuant to R. 4:50-1, or for dissolution of the restraining order pursuant to N.J.S.A. 2C:25-29e. We do not suggest that any of those applications should have been made, or could have been made successfully. We only note that since this issue is raised for the first time on appeal, we have no basis on this record to consider same, and that, in any event, defendant has failed to present a prima facie showing of ineffective assistance of counsel under the first or second prongs of the Strickland test.

In her brief, plaintiff urges that we award her counsel fees. There has been no cross-appeal, or formal application for counsel fees before us. Therefore, we decline to address that issue.

Affirmed.

 

(continued)

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10

A-1146-05T1

RECORD IMPOUNDED

July 20, 2006