SUSAN ROGERS v. KENNETH B. MARTYN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2029-05T12029-05T1

SUSAN ROGERS,

Plaintiff-Respondent,

v.

KENNETH B. MARTYN,

Defendant-Appellant.

_________________________________

 

Submitted: September 12, 2006 - Decided September 28, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, FV-15-945-06.

Pandolfe, Shaw & Rubino, attorneys for appellant (Charles F. Shaw, III, on the brief).

Piff & Frohlich, attorneys for respondent (Wayne Frohlich, on the brief).

PER CURIAM

Defendant Kenneth Martyn appeals from a Final Restraining Order (FRO) entered against him by default under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (DVA), in favor of his former girlfriend, plaintiff Susan Rogers. The court found that defendant's conduct in making a series of repeated, early morning phone calls to plaintiff constituted the predicate offense of harassment under the DVA, warranting the issuance of restraints. The court also awarded plaintiff counsel fees of $1,000.

Defendant asserts the following arguments on appeal:

I. THERE IS NO COMPETENT EVIDENCE KENNETH MARTYN WAS EVER SERVED WITH THE TRO, AND IF ANYTHING THE EVIDENCE IS THAT MR. MARTYN WAS HOSPITALIZED AND IN NO POSITION TO DEFEND HIMSELF; THE HEARING ON NOVEMBER 9, 2005 IS A NULLITY AND THE ENTRY OF THE FRO WAS IN VIOLATION OF MR. MARTYN'S DUE-PROCESS RIGHTS.

II. HAD MR. MARTYN BEEN SERVED AND HAD BEEN GIVEN AN OPPORTUNITY TO DEFEND HIMSELF, THERE IS MORE THAN A REASONABLE PROBABILITY THAT THE FRO WOULD NOT HAVE BEEN ENTERED.

III. THE SEPTEMBER 25, 2 005 AND OCTOBER 6, 2005 TELEPHONE CALLS WERE NEVER MENTIONED IN THE COMPLAINT AND SHOULD NOT HAVE BEEN CONSIDERED AT THE FRO HEARING.

IV. THE TRIAL COURT SHOULD NOT HAVE AWARDED COUNSEL FEES WITHOUT AN AFFIDAVIT OF SERVICES.

We need only address Points I and IV in this opinion.

A Temporary Restraining Order (TRO) under the DVA was issued by a municipal court judge against defendant on November l, 2005, based on plaintiff's complaint of numerous threatening and harassing phone calls from defendant during the early morning hours of October 29. Because defendant had been transferred from the Kimball Hospital Crisis Center to Shoreline Behavioral Center in Toms River, Ocean County, the Point Pleasant police telefaxed a copy of the complaint and TRO to the Dover Township Police Department with directions that Dover Township police serve defendant at the Shoreline Behavioral Center.

At the FRO return date on November 9, 2005, defendant failed to appear. The trial judge questioned the service of the complaint and TRO, noting the absence of a time or date of service and printed name of the officer on the filed return of service. The judge found that service had been effected based on an entry in the Point Pleasant police report on November 2, 2005, that "I received return of service from Dover Township P.D. stating that Mr. Martyn was served with his copy of TRO on this date at 9:00 a.m.," the signature on the return of service, and his clerk's comment that the court's computer records indicated service. Plaintiff's counsel stated his understanding that defendant had been released from the Shoreline Behavioral Center, but acknowledged it was third-hand information. No further inquiry was made of defendant's status. Following plaintiff's testimony, the court made its finding of domestic violence and issued the FRO.

Procedurally, the FRO was entered against defendant by default, i.e. nonappearance. Defendant's challenge to the validity of the order, i.e. lack of competent evidence of service of the TRO and of his ability to be present at the hearing, should have been brought before the trial court by a Rule 4:50-1 motion. See Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992) (holding that a direct appeal will not lie from a judgment by default as Rule 4:50-1 provides the defaulting party with a remedy). Accordingly, defendant's appeal is dismissed without prejudice. We suggest he file a motion with the trial court to vacate the FRO under Rule 4:50-1. We take no position as to the merits of such motion.

Pursuant to N.J.S.A. 2C:25-29b(4), the court may order a defendant to pay the victim's reasonable counsel fees as compensatory damages. The fees must be a direct result of the domestic violence; the fees must be reasonable; and pursuant to Rule 4:42-9(b), the fees must be presented by affidavit. Schmidt v. Schmidt, 262 N.J. Super. 451, 454 (Ch. Div. 1992). As plaintiff's counsel never submitted an affidavit of services, and the trial court made no findings with respect to such fees, we reverse and remand the award of counsel fees.

Appeal dismissed; reversed and remanded as to the counsel fee award. We do not retain jurisdiction.

 

(continued)

(continued)

4

A-2029-05T1

 

September 28, 2006