D.A.G v. P.H

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5601-09T4

D.A.G.,

Plaintiff-Respondent,

v.

P.H.,

Defendant-Appellant.

__________________________________

November 23, 2011

 

Submitted October 3, 2011 - Decided

 

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

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1862-10.

 

Steven C. Rubin, attorney for appellant (Grace S. Byrd, of counsel and on the brief).

 

D.A.G., respondent pro se.

PER CURIAM

The sole question presented in this appeal is whether two brothers, who were raised in different homes from birth but who ultimately developed a familial relationship as adults and maintained it for nearly two decades, are "former household members," triggering the jurisdiction of the Prevention Against Domestic Violence Act ("the PDVA" or "the Act"), N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we sustain the trial court's finding that, in the distinctive setting of this case, the brothers qualify as "former household members" pursuant to N.J.S.A. 2C:25-19(d). Consequently, the Family Part had jurisdiction to issue a domestic violence restraining order against one of the brothers, after he had threatened the other brother and that brother's children with physical harm.

I.

The sibling relationship between plaintiff, D.A.G., and defendant, P.H., has an atypical chronology. Although defendant elected not to testify at trial, and the record of the parties' family history is therefore limited, the following background emerges from plaintiff's trial testimony and various common (and thus undisputed) factual assertions in the parties' appellate briefs.

Plaintiff, the older sibling, was born to a married woman in 1958. A blood test was performed that erroneously ruled out the mother's husband as plaintiff's birth father, and the couple placed plaintiff up for adoption shortly after his birth. Plaintiff was soon adopted by an unrelated family, who raised him to adulthood.

Defendant was born the following year, in 1959. Evidently by that point, plaintiff had already been adopted and was not living with the birth parents. Defendant was raised to adulthood by the birth parents. A third brother, who is now deceased, was born to the couple in 1960.

During the first three decades of their lives, plaintiff and defendant had no contact with one another and, apparently, were not aware of each other's existence. Their birth mother died in the mid 1980s. In his trial testimony, plaintiff acknowledged that he and defendant have never lived together.

After plaintiff's remaining adoptive parent died in 1989, he began to trace his roots. He obtained a copy of his adoption papers in 1990 and tracked down his late mother's former husband. A DNA paternity test was performed in 1991 and revealed that, contrary to the 1958 blood test, the former husband was indeed plaintiff's birth father. At that point, plaintiff learned the identity of defendant and of their common heritage.

The brothers, who reside about an hour and a half away from each other,1 met for the first time in 1991. According to plaintiff's unrefuted2 testimony, the brothers thereafter got to know each other and developed a familial relationship. Over the next nineteen years, they participated in numerous family events together. Defendant attended plaintiff's wedding. The brothers celebrated several holidays together, including about five to ten Christmas gatherings and at least two Thanksgivings at plaintiff's house. They exchanged gifts for several years. The get-togethers sometimes included defendant's two, now-grown daughters, who plaintiff got to know well. The brothers jointly buried the ashes of their mother and younger brother at sea. They also attended baseball games together, including one of plaintiff's son's games.

Plaintiff testified that, after divorcing his wife in 2004, he "actively worked to have more of a relationship" with defendant. However, for reasons that are not entirely clear from the record, those efforts ultimately became problematic, and defendant eventually told plaintiff to stay out of his life and his daughters' lives. According to plaintiff, the daughters feel differently, and they would like to maintain a relationship with him.

The friction reached its peak when one of defendant's daughters invited plaintiff and his children to her infant son's christening. The infant is defendant's first grandchild. Plaintiff intended to attend the christening, but defendant did not want him there.

On April 27, 2010, with the christening looming, defendant sent plaintiff a series of menacing text messages. The text messages contained obscene language. One message accused plaintiff of molesting his son. Another message stated, "[b]ring your weapon."

Around 9:00 p.m. that same day, plaintiff and defendant spoke on the phone. Plaintiff recorded the phone conversation.3 During the conversation, defendant graphically threatened to kill plaintiff and his children if plaintiff attended the christening. Among other things, defendant warned plaintiff that he owned a "scope," and that he would "hunt" plaintiff and his children down like a "sniper" and "blow off" their heads. Defendant stressed that he knows where plaintiff's daughter is going to college and where plaintiff lives and that he can find plaintiff "anywhere" he goes.

Plaintiff applied to the Family Part for a temporary restraining order ("TRO"), which was granted on May 4, 2010. The TRO was served upon defendant by police in his state of residence. The police found two handguns and a rifle with a scope in defendant's possession and confiscated them pending the Family Part proceedings.

At the ensuing trial, plaintiff, representing himself, sought a final restraining order ("FRO"). He testified and was cross-examined by defendant's attorney. He also played for the court the audio recording of his April 27 telephone conversation with defendant.

Plaintiff's girlfriend, who had been dating him for the past three years, also testified. She related that defendant called her on or about May 4, 2010. She returned his call, and in their ensuing conversation,4 defendant made threatening comments about his brother and warned that plaintiff "better watch his back for the rest of his life because [defendant will] be looking for him." Defendant also told the girlfriend that he needed to get his guns back for his personal safety.

At the conclusion of the proofs, defense counsel moved to dismiss the complaint for lack of jurisdiction under the PDVA. Defense counsel argued that the brothers are not "former household members" under the statute. The trial judge rejected that jurisdictional argument.

Among other things, the judge found that, after the "hiatus" resulting from their post-birth separation, the brothers commenced what appeared to be a "normal relationship" as adult siblings. The judge observed that the sibling relationship was "rediscovered" and "nurtured over the years by both parties."

The judge found it noteworthy that the event precipitating defendant's wrongful conduct, i.e., plaintiff's intended attendance at his grand-nephew's christening, arose out of "intra-family" matters. In this context, the judge concluded that the parties' relationship qualified for protection under the Act, even though plaintiff and defendant had never resided with one another.

On the merits, the judge accepted as credible plaintiff's testimony about defendant's conduct, specifically finding that defendant had "engaged in a course of threats both against plaintiff and his family, including threats to kill." The judge noted that defendant was "very explicit" about his threats and that plaintiff had not baited defendant into making them. The judge concluded, by a preponderance of the evidence, that defendant's conduct amounted to terroristic threats under N.J.S.A. 2C:12-3 and harassment under N.J.S.A. 2C:33-4, which are predicate acts under the PDVA. The judge was further satisfied that an FRO was necessary for the protection of plaintiff and his children. Based upon these findings, the court entered an FRO against defendant on June 7, 2010. The FRO continues a prohibition against defendant possessing firearms.5

This appeal followed. Defendant solely contests the trial court's exercise of jurisdiction under the PDVA. He does not challenge the court's findings of the commission of predicate acts of domestic violence, nor the legitimacy of plaintiff's need for protection.6

II.

In assessing whether the PDVA covers the relationship of these brothers, it is first appropriate to consider the legislative history and purposes of the statute.

The declared intent of the Legislature in enacting the PDVA is to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. The statute's declaration of purpose also stresses that "it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions[.]" Ibid. (emphasis added).

The Legislature has periodically amended the language of the PDVA so as to extend its protections to more individuals. For example, initially the Act's definition of victims eligible to obtain restraints was confined to opposite sex "cohabitants," persons having a child in common, or persons related by blood. N.J.S.A. 2C:25-3. In 1991, the Legislature expanded that definition by replacing the term "cohabitant" with the broader term "household member." N.J.S.A. 2C:25-19(d). See L. 1991, c. 261, 3.

The Legislature has also amended the Act to add new groups or classes of persons to the sphere of protected victims. In 1994, protections were extended to victims who were subjected to domestic violence by someone with whom they had a dating relationship or with whom they intended to have a child. See L. 1994, c. 93, 1.

Defendant makes much of the fact that he and plaintiff have not resided under the same roof at any point in their lives. However, at least two reported and instructive cases from the Family Part have construed the term "household member" within the Act to not require such cohabitation.

For example, in Desiato v. Abbott, 261 N.J. Super. 30, 34 (Ch. Div. 1992), the court found that the parties were "de facto" household members who had interacted in a "family-like setting," even though they never regularly lived together. In reaching that conclusion, the court in Desiato focused upon the 1991 revision of the statute substituting the broader term "household member" for "cohabitant." Id. at 33. "Although the Act does not define 'household member,' a fortiori, it cannot mean to hold residency and cohabitation as a prerequisite." Ibid. The court also took note of the wide range of relationships connoted by the term "household" in other legal contexts. In that vein, the court observed that "'[h]ousehold' is generally treated to be a more comprehensive term than family, and most courts acknowledge that the term 'family' itself is 'variable and capable of different definitions depending on the context in which it is used.'" Ibid.

Similarly, in South v. North, 304 N.J. Super. 104, 107, 114 (Ch. Div. 1997), the court ruled that a defendant who never lived with the plaintiff, but who had parented a child with the plaintiff's daughter and who frequently went to plaintiff's residence and attended family gatherings, was a "de facto" member of her household. As in Desiato, the court found significance in the 1991 revision to the Act's definition of a victim, noting that "[a]s a result of [this] amendment, protection was extended to any person who has a close relationship with his or her batterer." Id. at 109. The court also underscored the broad and flexible nature of the concept of a "household" in various other contexts and noted that "[p]ublic policy concerns demand that the term 'household member' be defined even more expansively in domestic violence cases than in insurance, zoning or tort cases." Id. at 110-12.

Although cohabitation is no longer an element of the statute, we further note that some reported cases construing the Act have classified the parties as former household members where their period of cohabitation was relatively brief. See, e.g., S.Z. v. M.C., 417 N.J. Super. 622, 625 (App. Div. 2011) (involving seven months of cohabitation); Bryant v. Burnett, 264 N.J. Super. 222, 224, 226 (App. Div.), certif. denied, 134 N.J. 478 (1993) (involving three months of cohabitation).

On the other hand, the mere fact that a plaintiff and a defendant resided together at one time in the past is not dispositive of jurisdiction under the Act. For example, in Jutchenko v. Jutchenko, 283 N.J. Super. 17 (App. Div. 1995), the Act was found inapplicable to the relationship of two adult brothers who had not lived together for approximately twenty years. Given that substantial lapse in time, the court declined to extend the Act's jurisdiction to the brothers' relationship, "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.'" Id. at 20. Cf. Storch v. Sauerhoff, 334 N.J. Super. 226, 233-35 (Ch. Div. 2000) (holding that a stepdaughter and her stepfather were "former household members" under the Act, even though she had not lived with him for eleven years, because of the parties' "substantial integrated family relationship" that continued even after they ceased living with one another).

The concept of a qualifying "household member" under the Act was usefully distilled down to six factors in Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006). In that case, the court granted an FRO to an elderly mother to protect her from further domestic violence by her adult daughter, even though they had not resided with one another in the past twenty-nine years. Id. at 345. In analyzing whether the mother and daughter were former household members under the PDVA, the court considered:

(1) the nature and duration of the prior relationship;

 

(2) whether the past domestic relationship provides a special opportunity for abuse and controlling behavior;

 

(3) the passage of time since the end of the relationship;

 

(4) the extent and nature of any intervening contacts;

 

(5) the nature of the precipitating incident; and

 

(6) the likelihood of ongoing contact or relationship.

 

[Id. at 351-52.]

Because those factors, on balance, weighed in favor of jurisdiction in Coleman, the court rejected the defendant's assertion that the statute was inapplicable to their relationship. Id. at 352-58. In particular, the court noted that "[a]side from the length of time since the parties shared a household, all the other factors point in favor of jurisdiction," and that the parties "continue to be entangled in the kind of emotional and family relationship that the Act was intended to cover." Id. at 358.

Guided by this line of published cases, as well as by the terms and objectives of the statute, we conclude that the trial court properly exercised the Act's jurisdiction in imposing restraints upon defendant. We consequently affirm the trial court's issuance of an FRO, substantially for the cogent reasons expressed by Judge James J. McGann in his bench ruling on June 7, 2010. We add a few comments.

It was not essential, as a matter of law, for the brothers to have had lived together in the past. See South, supra, 304 N.J. Super. at 113; Desiato, supra, 261 N.J. Super. at 34. The critical time frame is not the period in which the brothers were raised to adulthood in their respective and separate dwellings. Rather, what is more important here is the nineteen-year period after the brothers encountered one another for the first time. During those two decades, as Judge McGann aptly noted, the brothers essentially maintained a "normal relationship" as adult siblings, joining one another at family gatherings, holidays, burial services, sporting events, and the like. Despite the fact that those shared activities were intermittent and in some respects seasonal, they were sufficiently regular and sustained to manifest the "family or family-like" relationship contemplated by the Legislature in N.J.S.A. 2C:25-18.

Although our conclusion does not depend upon it, an application of the six factors in Coleman generally supports the application of the PDVA to the brothers' relationship here. First, the nature of this sibling relationship (at least after the brothers discovered one another in adulthood) and its nineteen-year extended duration weigh in favor of jurisdiction. This is not a situation of sibling estrangement or indifference; instead, the brothers interacted as one would expect most adult siblings to interact, gathering at holidays and other occasions and getting to know each other's children.

Second, the record also reflects the presence of a "special opportunity" for abusive and controlling behavior. That opportunity arises, at least in part, from the personal information that the brothers came to learn about one another, which ultimately became a point of leverage that defendant utilized when he threatened plaintiff and boasted that he could easily track down plaintiff and his children. The proofs, including the recorded threats presented to the Family Part judge, suggest that defendant knows a good deal about his brother and that he was attempting to use that private knowledge to intimidate him. Defendant specifically knew where plaintiff's daughter one of the objects of defendant's threats was attending college,7 presumably by virtue of the family relationship.

Third, the brothers' familial connection was ongoing, up until the time when defendant demanded that plaintiff cease his involvement in the family and, in particular, that plaintiff refrain from coming to his grandson's christening.

The parties' intervening contacts, which comprise the fourth factor in Coleman, further strengthen the jurisdictional foundation under the statute. As the court observed in Coleman, "[t]he intensification of contacts between [] two parties favors a finding of jurisdiction." Coleman, supra, 388 N.J. Super. at 355. According to plaintiff's unrebutted testimony, the brothers' interactions had increased since 2004, as the brothers engaged in numerous activities together, and plaintiff became closer to defendant's adult children.

Fifth, and perhaps most importantly, the "precipitating event," i.e., the planned christening of defendant's grandson, weighs in favor of jurisdiction. As Judge McGann rightly noted, defendant's acts of domestic violence were sparked by "intra-family issues" and "intra-family relationships." Defendant did not want plaintiff to attend the christening, and, more fundamentally, he did not want plaintiff to maintain a relationship with his daughters. Plaintiff, on the other hand, insisted that his nieces welcomed his continued involvement in their lives and asserted that he was going to attend the baptism in spite of his brother's disapproval. It was only after defendant's threats that plaintiff elected not to attend that family event.

This is a classic rift among relatives, one that grows out of a "family-like setting." The dispute was within the family, about the family, and affecting the people in the family. It was not a business dispute, a neighborhood dispute, or a political dispute. The subject matter clearly concerned the family, which unfortunately prompted defendant to react in an emotional and aggressive manner. We agree with the trial judge that this is the sort of intra-family conflict that, having escalated to threats to kill and criminal harassment, justifies the application of the Act.

Sixth, the prospect of continued contact between the brothers, absent restraints, amplifies the propriety of the FRO. Although defendant apparently wants plaintiff to stay out of his own life, plaintiff's ongoing connections with the other members of the extended family most likely would place the brothers in physical proximity or in oral contact with each other at holidays or other future family gatherings. Plaintiff and his own children are entitled to the Act's protection at such family events or encounters. Although we recognize that defendant is free to discontinue his own relationship with his brother, defendant has no legal authority to prevent his adult children from interacting with their uncle if they choose to do so.8

As a final point, we find misplaced defendant's substantial reliance upon Jutchenko, supra, 283 N.J. Super. at 17, in which the Act was ruled inapplicable to the two adult brothers in that case. The facts in Jutchenko are markedly distinguishable from the case at bar. In that case, the brothers had not lived with one another for twenty years, and there is no indication in the opinion that the brothers continued any sort of familial relationship after leaving their childhood home. Id. at 20-21. Here, the record is replete with evidence of the brothers, as grown men, gathering at Christmas and at other holidays and family events. The record here also shows that plaintiff was interacting not only with defendant, but also with his adult daughters. By contrast, no such additional family ties were mentioned in Jutchenko. The jurisdictional foundation here is significantly stronger.

For these many reasons, we affirm the trial court's exercise of jurisdiction under the PDVA, on the distinctive facts of this case.

The final restraining order issued on June 7, 2010 is affirmed.

1 Plaintiff resides in New Jersey and defendant resides in a neighboring state. Defendant does not contest this court's exercise of personal jurisdiction over him. His jurisdictional argument is confined to the applicability of the PDVA to the parties' relationship.

2 Defendant, who was represented by counsel in the Family Part, did not present any witnesses or documentary proofs.

3 Plaintiff included a CD of the recorded conversation with his appellate brief, and we have reviewed it.

4 This conversation was also recorded. The trial judge found it unnecessary to listen to this recording because the testimony provided him with the substance of the conversation.

5 The court rejected plaintiff's ancillary request to be reimbursed for the costs of a security alarm system, a ruling that plaintiff has not cross-appealed.

6 After the calendar date of this appeal passed, defendant filed a motion to supplement the record pursuant to Rule 2:5-5. The motion brought to our attention that on September 13, 2011 defendant was found not guilty in the Criminal Part of a two-count indictment charging him with terroristic threats, N.J.S.A. 2C:12-3, and offensive touching, N.J.S.A. 2C:33-4b. Although we have granted the motion to supplement for sake of completeness, it does not affect our disposition of this civil matter brought under the PDVA. The burden of proof in a criminal case beyond a reasonable doubt is stricter than the burden of proving a violation of the PDVA, which only requires proof by a preponderance of the evidence. See J.D. v. M.D.F., 207 N.J. 458, 474 (2011) (noting that "a judgment of acquittal of the predicate act will not undercut the court's authority to impose restraints or other relief permitted by the Act"). Moreover, the criminal prosecution was brought by the State of New Jersey, not by plaintiff, so there is no identity of the parties for purposes of issue or claim preclusion. See In re Estate of Dawson, 136 N.J. 1, 20-21 (1994); Velasquez v. Frank, 123 N.J. 498, 505-06 (1991); see also State v. Silva, 394 N.J. Super. 270 (App. Div. 2007) (holding that, reciprocally, factual findings in an FRO hearing by the Family Part are not the proper subject of judicial notice in related prosecution in the Criminal Part).

7 Plaintiff asserts that his daughter's college is located a short distance away from where defendant resides. That proximity enhances the realistic opportunity for fear and intimidation.

8 We are mindful that on the audio recording defendant tells plaintiff that his daughters do not wish to have contact with him, despite the invitation of plaintiff to the baptism. Even so, defendant presented no testimony in the Family Part to support this contention or to rebut plaintiff's testimony on the subject.