M.A. v. E.A.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6736-04T16736-04T1

M.A.,

Plaintiff-Appellant,

v.

E.A.,

Defendant-Respondent.

_______________________________________

 

Submitted October 5, 2006 - Decided November 17, 2006

Before Judges A. A. Rodr guez, Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-192-06.

Paul G. Kostro, attorney for appellant.

Respondent did not file a brief.

The opinion of the court was delivered by

SABATINO, J.S.C. (temporarily assigned).

Plaintiff M.A. appeals the Family Part's August 3, 2005 order dismissing her domestic violence complaint against her husband, defendant E.A. Plaintiff sought restraints after her fifteen-year-old daughter by another marriage reported that defendant had sexually abused her two nights earlier, and that he had been doing so for several years. Although we affirm the Family Part's holding that defendant's teenage stepdaughter is not a "victim" within the statutory definition of N.J.S.A. 2C:25-19(d) and that the mother lacks standing to assert claims on her child's behalf under the Prevention of Domestic Violence Act ("Domestic Violence Act"), N.J.S.A. 2C:25-17 to 35, we remand for further proceedings to enable the record to be amplified concerning acts of domestic violence that defendant may have committed against plaintiff individually, acts which were partially described in plaintiff's testimony before the trial court curtailed it.

Plaintiff, who testified at trial through a Polish interpreter, was born in Poland and moved to the United States at the age of twenty-three. In December 1989, plaintiff gave birth to a daughter ("M.P.") with her first husband. After that marriage ended, plaintiff met defendant in July of 1996, and began living with him two months later. The parties had a son in 1997 and were married in 2oo1. M.P. continued to reside with them and her half-brother.

The record indicates that in December 2001 defendant was arrested by the Linden police based on allegations that he had assaulted plaintiff. As recounted by plaintiff in her testimony in this case, the parties had an argument which caused defendant to start "beating [her] up." M.P. called the police and plaintiff, who had "a terrible headache," was taken to the hospital. Plaintiff recalled that she procured a restraining order against defendant at that time, although no such order was supplied in the record. In any event, the parties thereafter resumed cohabitating.

Plaintiff also recounted at trial that defendant "would occasionally batter [her] [and] beat [her] up," and that he "would kick [her] [and] push [her]," but not to an extent that would cause her to call the police. She illustrated this by describing an incident when defendant struck her in the face while the two of them were in the car by Home Depot. Although the blow was painful and caused plaintiff to walk home alone, it did not result in any physical injuries.

Plaintiff also described that she had observed defendant under the influence of alcohol "whenever [they] had parties at home," and "sometimes . . . saw him coming back from work [on] Saturdays drunk." She also noted that his driver's license had once been suspended for an alcohol-related offense.

The present matter was brought to the police's attention on July 22, 2005, when the police came to the parties' Linden residence in response to a report that defendant had sexually assaulted M.P. on multiple occasions, most recently two days earlier on July 20 in her mother's bedroom. The allegations included vaginal intercourse and fellatio, which M.P. contended had been occurring with defendant since she was age eight or nine. The police interviewed M.P. at the home and then arranged for the assistance of a sexual assault nurse examiner, a rape crisis worker, and the Division of Youth and Family Services. The police also interviewed plaintiff, who advised them that she had been unaware of the sexual assaults until her daughter had reported them to her earlier that day. The record indicates that plaintiff worked in the evening hours and thus would have been away from the residence when the alleged sexual acts occurred.

Following the police investigation, defendant was arrested and charged with aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(2)(c). On July 26, 2005, defendant posted bail and was released from jail. Although it was not documented to the Family Part judge, the bail conditions were presumed to contain the customary restriction on any contact between defendant and his stepdaughter.

On the same day that defendant posted bail, plaintiff filed, apparently with the aid of an interpreter, a complaint in the Linden Municipal Court seeking a Temporary Restraining Order ("TRO") against defendant under the Domestic Violence Act. The complaint specifically alleged:

Her [plaintiff's] husband has verbally threatened her life by "stating he is going to KILL ME.["] [sic]. [T]he family is in fear of their [l]ives. Her husband did commit an act of sexual assault against his stepdaughter [MP].

The complaint checked off boxes for the offenses of sexual assault, harassment and terroristic threats. In the prior history section, the complaint noted the assault incident from 2001 which had led to defendant's previous arrest.

Plaintiff's TRO application was presented telephonically to a municipal court judge. The judge granted the application. Among other things, the TRO prohibited defendant from having any contact with plaintiff, M.P., or the parties' son.

Both parties were represented by counsel at the ensuing trial in the Family Part on plaintiff's application for a Final Restraining Order ("FRO"). The proceedings were translated to plaintiff through a Polish interpreter.

At the outset of the trial, the Family Part judge and plaintiff's counsel engaged in a colloquy on whether plaintiff had standing to seek protection under the Domestic Violence Act arising out of defendant's alleged sexual assaults on his stepdaughter. That legal issue was again raised several times throughout the proceedings. The judge ruled that, under the terms of the statute, plaintiff could not predicate her domestic violence claims on defendant's conduct against her daughter, and that evidence of such conduct was not relevant. As the judge elaborated:

[Plaintiff] cannot obtain a domestic violence restraining order in New Jersey on behalf of her daughter. It might very well be that there is a pending criminal complaint against Mr. [A.] [in which] he will have to deal with those criminal charges as they pertain to her daughter and, as a result of those criminal charges, if he is convicted, certainly there would be, as a part of his sentence, some precautions taken to protect the daughter, but the state of the law in New Jersey with respect to domestic violence does not provide a vehicle for mothers to seek restraining orders on behalf of their daughters or sons.

Having made that determination, the judge terminated the direct examination of the plaintiff, who had repeatedly made references in her testimony to defendant's alleged sexual acts and her concern for her daughter even after the judge had made clear that the mother lacked standing to do so. The judge concluded that plaintiff had failed to establish that defendant had committed domestic violence against her individually, and thus dismissed the restraints.

After the Family Part subsequently denied plaintiff a stay of its ruling, this appeal ensued.

II.

We first address the applicability of the Domestic Violence Act to defendant's alleged sexual assaults of his stepdaughter occurring when she was at or under the age of fifteen. A threshold question is whether M.P. fits the specific definition of a "victim" eligible to seek a TRO or FRO under the Act. In that regard, N.J.S.A. 2C:25-19d provides as follows:

"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.

[N.J.S.A. 2C:25-19d (emphasis added).]

The statute further defines an "emancipated minor" specifically as "a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant or has been previously declared by a court or an administrative agency to be emancipated." N.J.S.A. 2C:25-19e.

The Act's present definition of a "victim" resulted from legislative amendments in 1994 that slightly expanded the original definition to encompass a person in a dating relationship, as well as in situations where one party is expecting the child of the other party. Significantly, those particular expansions of the definition do not require the victim to be eighteen years of age or older.

Applying these statutory requirements to the record facts, we concur with the trial judge that M.P. was not a "victim" permitted to bring an application for a restraining order under the Domestic Violence Act. It is undisputed that M.P. was under the age of eighteen, had never been married, was not in military service, was not a parent, and was not pregnant. As such, she was an unemancipated minor ineligible to bring a complaint under the statute in the absence of a dating relationship with the defendant. We decline, as did the trial judge, plaintiff's invitation to categorize defendant's sexual conduct with his stepdaughter as a "dating relationship," for such a finding would unacceptably torture the English language and also would euphemize the hostile nature of defendant's alleged behavior. See Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003) (defining the contours of a "dating relationship" under the Act).

There is also nothing in the text of the statute that allows plaintiff to file a domestic violence complaint on behalf of her minor child as, in effect, a "guardian ad litem." For reasons that are not altogether apparent to us, the Legislature has circumscribed the definition of a "victim" under the Act beyond common notions of victimization. If it had desired to expand the statute to cover all unemancipated minors, it surely knew how to express that desire. Were we to allow this plaintiff to obtain a restraining order under the Act on her daughter's behalf, we would transgress the presumed will of our elected representatives. See N.J.S.A. 2C:25-19(a) (defining "domestic violence" as the occurrence of one or more enumerated acts "inflicted upon a person protected under this act"). Any remedy to cover the situation must be sought from the Legislature.

Nor do the alleged sexual assaults of the defendant committed upon his stepdaughter qualify as actionable "harassment" against the plaintiff. Criminal "harassment" is defined at N.J.S.A. 2C:33-4 as an offense committed by a person "with purpose to harass another" who

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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

[N.J.S.A. 2C:33-4.]

None of these definitions sensibly applies to defendant's alleged sexual assaults upon M.P.

Subsection a of N.J.S.A. 2C:33-4 does not apply because the defendant's alleged sexual acts are not a form of communication. See N.J.S.A. 2C:33-4a. Subsection b, although it includes acts of physical violence, is inapplicable because the term "another" in its phrase "[s]ubjects another to" logically refers to the plaintiff, and not to a third party. See N.J.S.A. 2C:33-4b. Indeed, the prefatory language of N.J.S.A. 2C:33-4 requires the defendant under all three subsections to have a "purpose to harass another" person. In keeping with the symmetry of the text, that "another" person referred to in the prefatory clause must be the same human being as the "another" person under subsection b who is subjected to violent conduct by the defendant. Ibid. Finally, subsection c fails to cover plaintiff in this case, because even though defendant's alleged sexual assaults on M.P. were surely "alarming," there is nothing in the record to suggest that defendant assaulted M.P. for the purpose of "alarming" M.P.'s mother rather than for his own sexual gratification. See N.J.S.A. 2C:33-4c; see also State v. Hoffman, 149 N.J. 564 (1997) (explicating statutory elements of harassment in the domestic violence context).

In sum, we are constrained by the boundaries of the present statute to sustain the Family Part's conclusion that defendant's alleged sexual abuse of his minor stepdaughter cannot, as a matter of law, support the issuance of a restraining order under the Domestic Violence Act.

III.

Much of plaintiff's incomplete testimony at the FRO hearing concerned defendant's alleged sexual assaults upon her daughter. Indeed, at one point in her examination plaintiff seemingly was restricting her allegations of fear to those arising out of her husband's sexual behavior:

THE COURT: Well, why don't we ask her first if she is feeling that she's in some type of danger.

MR. KOSTRO [PLAINTIFF'S COUNSEL]: I thought she already testified to that, Your Honor.

THE WITNESS [PLAINTIFF]: My daughter is in danger.

THE COURT: No, didn't ask -- he's asking you if you've ever felt that you were in danger, ma'am?

THE WITNESS: No. I did not come here for myself, I came here for my daughter and for my children.

Yet, at other points in the proceeding, plaintiff was rather equivocal, suggesting that her fear of defendant stemmed from more than his aggression against her daughter. Plaintiff's testimony was often very unclear and frequently interrupted. At one point the interpreter was not allowed to complete the translation until the court intervened. The following passages, which we quote at length, illustrate these difficulties:

[THE COURT]: Mrs. Atalaya, your complaint says that your husband has verbally threatened your life. Your complaint is dated July 26, 2005. Do you recall your complaint that you filed in Linden Municipal Court?

THE WITNESS: Well, yes, when I went there to court to file for the restraining order I was telling me that I was afraid because I was afraid, you know, for my daughter.

THE COURT: Were you ever afraid for yourself?

THE WITNESS: Well, no, or sometimes he was using abusive language, calling me that I was nothing, that I'm not going to be able to manage here in this country because I didn't know any English, but you know, I was always trying to live -- live in that relationship for my children.

THE COURT: Counsel, if you'd like to continue to attempt direct.

BY MR. KOSTRO:

Q Did you come to my office and tell me

that you were afraid?

A Well, yes, yes, I was afraid, but I was afraid for, you know, my family. What had happened in my family, it was like you see things in movies, you know. No one can understand really what happened and what happened to me in that.

Q The Judge would like to hear about yourself at this point.

A You know, what he had done to my daughter, I have no --

MR. SUMNER [DEFENSE COUNSEL]: Objection, Your Honor.

MR. KOSTRO: Your Honor, the interpreter was not allowed to complete her interpretation.

THE COURT: Can you, please?

THE INTERPRETER: What had happened to my daughter now I have no idea what could possibly happen to us now.

THE COURT: You're still making an objection?

MR. SUMNER: No.

THE COURT: Okay. Continue.

BY MR. KOSTRO:

Q It is important for now to talk about the harm that has occurred to you.

MR. SUMNER: Judge, that's not only a leading question, it's not a question.

MR. KOSTRO: It's not a question, Your Honor. I'm -- it's an introduction for my client.

THE COURT: Sustained. Sustained.

BY MR. KOSTRO:

Q Tell the Judge about the fear that you have --

MR. SUMNER: Objection, leading question.

THE COURT: You haven't established any fear, Counsel.

MR. KOSTRO: I'm sorry, Your Honor?

THE COURT: You haven't established any fear. Again, I'll repeat myself, you can't ask a question about the fear that she experienced if you haven't established the fact that she ever experienced any such fear. She's already said she didn't have any such fear.

BY MR. KOSTRO:

Q When you came to my office you told me that you were afraid for yourself.

MR. SUMNER: Objection, Your Honor.

THE COURT: Sustained. That was a statement and that was leading.

BY MR. KOSTRO:

Q Tell the Judge what you said to me when you came to my office.

A That I am afraid for myself, I'm afraid for my children. I'm afraid to go to bed, to sleep, to be alone in the house. I'm afraid to basically live.

Q Can you tell the Judge why you're afraid for yourself?

A Why -- why am I afraid for myself? Because God forbid, anything happens to me, what will happen to my children, where will my children go? In the situation that we have now they would be taken away to foster care or somewhere.

Q Tell the Judge -- you told the Judge previously how he previously hit you -- your husband previously hit you. Is that something that has occurred throughout your marriage?

A Yes.

Q And you previously testified how you observed your husband to be under the influence of alcohol?

A Could you repeat that?

Q And you testified earlier how you observed your husband to be under the influence of alcohol?

A But the fact whether he was under the influence or he wasn't, it did not affect his behavior toward me because he would call me names, bitch, and this and that, and he would not consider the fact that the children were around and they were, you know, in his presence.

* * * *

Q Is there anything you'd like the Judge to know about the way your husband would treat you?

A The fact that he was calling me names that, you know, he was calling me fat, and that -- telling me that I should lose weight and, you know, I would ask why he wasn't sleeping with me anymore, and so he would tell me that I have to lose some weight before.

Q Did you ever observe your husband hit any of your children?

MR. SUMNER: Objection, leading.

THE COURT: Leading and not relevant, unless we can establish some act of domestic violence against the plaintiff, and then I could, therefore, take into consideration how that act of domestic violence, and any other conduct the defendant has engaged in toward the children --

MR. KOSTRO: Your Honor, I believe that we have established the fact that he -- there has been harassment, if nothing else.

THE COURT: I have no allegation of harassment whatsoever from this plaintiff to form the basis for this restraining order. The only thing she has testified about is something that happened four years ago, other acts in the past, which I have absolutely no time frame for, and name calling.

I have absolutely nothing that would indicate why she filed for this restraining order to protect herself now, other than her statement that she didn't do it for herself, just her children.

THE WITNESS: Because that's why I came to court.

THE COURT: That was not a question for you, ma'am. That wasn't a question directed to you.

BY MR. KOSTRO:

Q Mrs. [A.], the Judge wants to hear about your relationship with your husband.

A Well, I can't say -- I can't say that our marriage was a bad marriage. Once again, I did not come her for --

THE COURT: Yourself?

THE WITNESS: Yes, I came for my children and for myself.

THE COURT: What for yourself, ma'am?

THE WITNESS: Because I got scared for the fact what he had done toward [M.P.]

THE COURT: Scared of what?

THE WTINESS: Because he's been doing -- having sex three years now with her and I was afraid -- I'm alone here.

THE COURT: Afraid of what, ma'am?

THE WITNESS: Of him.

THE COURT: What about him? What are you afraid of?

THE WITNESS: Because what he had done to my daughter I do not know now what else he could do to us.

THE COURT: What are you afraid he might do to you?

THE WITNESS: Well, I don't know, maybe he was planning to do something like to take away from [sic] children and [M.P.] had mentioned to me that he was planning a trip together --

MR. SUMNER: Objection to hearsay.

THE WITNESS: -- to Virginia to try to --

THE COURT: All right. Counsel, I'm afraid that we've heard enough testimony from Ms. [A.] to establish that there aren't any allegations of domestic violence as they pertain to Mr. [A.] directed at her.

[Emphasis added.]

At this point, the plaintiff's testimony was terminated.

Although we can surely appreciate the trial judge's apparent frustration that plaintiff continued to testify about defendant's sexual assaults upon M.P., despite the court's clear ruling on plaintiff's lack of standing to complain of that conduct, we are concerned that plaintiff's testimony may have been unduly circumscribed by the frequent objections of counsel and colloquies with the court, and perhaps also by the impediments of translation.

Plaintiff's domestic violence complaint alleged discrete acts of domestic violence by defendant, independent of his alleged sexual assaults of M.P. These separate allegations involved terroristic threats, including a threat to "kill" plaintiff. Plaintiff echoed these concerns by repeatedly testifying that she was, among other things, "afraid." Nonetheless, the trial was dominated by the legal issue of standing. That circumstance may have curtailed plaintiff's ability to express herself fully and capably in her native language about terroristic or harassing acts committed by defendant, as she had alleged in her complaint, separate and apart from his sexual assaults upon M.P. We do not know whether plaintiff would or could have elaborated on such acts before her direct examination was halted. We also do not know from the incomplete record whether her allegations would have withstood cross examination, and what, if any, additional proof that plaintiff or defendant would have presented.

In the interests of caution and in keeping with the strong policies of protection underlying the Act, see N.J.S.A. 2C:25-18, we thus find it prudent to remand this matter for additional proceedings, at which time plaintiff shall be afforded an opportunity to amplify her testimony regarding specific acts of violence committed by defendant against her individually. Since the trial was conducted over a year ago, we note that the trial judge on remand may allow plaintiff to amend her complaint, upon proper notice to defendant, to allege more specifically any such acts of domestic violence transpiring before or after the original trial. See H.E.S. v. J.C.S., 175 N.J. 309, 321-25 (2003) (underscoring the importance of amending complaints to place a defendant upon proper notice of specific domestic violence allegations). However, we shall not reinstate the temporary restraints at this time; if plaintiff believes such interim protection is now necessary she may seek it in the ordinary course from the municipal court or from the Family Part upon sufficient proofs.

IV.

The judgment below is affirmed in part, vacated in part and remanded. We do not retain jurisdiction.

 

We do not know the outcome of the criminal charges against defendant, nor is that germane to our analysis in this civil matter.

We do note in this regard that "no-contact" provisions in a bail order, although desirable, would not be enforceable by plaintiff or by her daughter. Additionally, civil restraints procured by plaintiff or her daughter outside of the Domestic Violence Act would lack the authority of the power to arrest the defendant for a violation. It also seems incongruous that a minor who is raped and who becomes pregnant may obtain restraints under the Act, but that a raped unemancipated minor who does not conceive a child may not obtain similar relief.

We underscore portions of the transcript where plaintiff alludes to acts of domestic violence beyond defendant's alleged sexual assaults of M.P. It is by no means clear from the record that all of that alleged behavior occurred in the distant past.

We recognize that plaintiff's counsel did not place on the record a proffer of such independent acts, see R. 1:7-3, but they are fairly inferable from the allegations contained in the TRO.

(continued)

(continued)

12

A-6736-04T1

RECORD IMPOUNDED

November 17, 2006

 


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