C.R. v. A.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6236-09T1

C.R.,

Plaintiff-Respondent,

v.

A.R.,

Defendant-Appellant.

_________________________________

May 5, 2011

Submitted April 13, 2011 - Decided

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-2950-10.

Picillo & Associates, LLC, attorneys for appellant (Anthony N. Picillo, of counsel; Jeffrey Zajac, on the brief).

Carolann M. Aschoff, P.C., attorneys for respondent (Melissa A. Fecak-Ortiz, on the brief).

PER CURIAM

Alan R.1 appeals from the July 12, 2010 final order of the Family Part that dismissed his wife Cari R.'s complaint pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35 for failure to substantiate allegations of domestic violence. Although obviously gratified that the PDVA complaint was dismissed and its temporary restraint vacated, Alan pursues this matter on appeal because of a grievance stemming from the court's sua sponte inclusion of the following reference in the order: "CIVIL RESTRAINTS ISSUED UNDER FM DOCKET." In a separate order entered on the same date, in a then-nascent divorce proceeding (FM-07-2128-10) between the parties, the court ordered, among other things, "that [Alan] is prohibited from residing in the marital home on any day that is not his designated parenting time, however, he may enter and remain in the marital home while [Cari] is at work." It is from this provision that Alan actually seeks review, even though he did not seek leave to appeal from the interlocutory order in the FM proceeding.2 Because we believe that Alan was deprived of sufficient due process protections before he was restrained from the marital home, we reverse and remand for further proceedings.

I.

Alan and Cari were married in 1988. After a lately tumultuous relationship, Alan filed a complaint seeking the dissolution of the marriage on April 7, 2010. As of May 13, 2010, although the complaint had been handed to Cari by Alan in their kitchen, Cari's answer was yet to be filed.3

Four daughters were born of the parties' union, and as of May 13, the four teenagers resided at the marital home. Cari alleged that Alan committed several predicate acts under the PDVA that supposedly occurred during an argument on May 13, just before midnight. After considering the evidence presented by the parties, a local police officer, and from the eldest child, Abby (a pseudonym), the Family Part dismissed the domestic violence complaint, finding that the evidence did not demonstrate the occurrence of any acts of domestic violence. In addition to dismissing the complaint, the court vacated the temporary restraints that had been issued on May 14. Cari did not appeal.

Immediately upon explaining why the complaint should be dismissed, the Family Part stated the following:

Now, I am somewhat troubled by what [Abby] indicated on the stand. And I think she, in a way, was conveying a message for all the children, and whether she felt, since she's the oldest and the adult, that she should be the spokesperson for all the girls. But it's clear that they don't want the parents living together.

And I I tend to agree with them. I don't think it would be in the parents' best interest to be living in the house together, in light of what's been going on.

So, since I do have the matrimonial act case in front of me, I am going to enter civil restraints. And the bottom line is I am going to prohibit [Alan] from resuming to reside in the house. And that's on a temporary basis and without prejudice, but I think it would be in the best interests of the girls if that happened right now, especially in light of the fact that [Abby's] going to be leaving shortly, will be out of the country, and I assume that she has somewhat been the the leader or the caretaker for the girls while this has been going on for the last two months.

So, [Alan], I am not going to allow you back in the house to live.

After the entry of correlative orders in the FV and FM proceedings, this appeal ensued.

II.

We do not question the inherent authority of the Family Part to order, in an appropriate fashion and under proper circumstances, the exclusion of a spouse from the marital home, whether or not there has been domestic violence. N.B. v. T.B., 297 N.J. Super. 35, 42 (App. Div. 1997). In N.B., we held:

We recognize that parties in the midst of a tumultuous matrimonial dispute should ordinarily not reside under the same roof. However, that is a matter for the matrimonial court to resolve. The matrimonial court has equitable power to remove a spouse from a marital home on a proper showing even if the home is owned by both as tenants by the entirety. See Degenaars v. Degenaars, 186 N.J. Super. 233, 235 (Ch. Div. 1982); Babushik v. Babushik, 157 N.J. Super. 128, 129 (Ch. Div. 1978); S. v. A., 118 N.J. Super. 69, 70, 285 A.2d 588 (Ch. Div. 1972); Roberts v. Roberts, 106 N.J. Super. 108, 109-10 (Ch. Div. 1969). Disputes which do not rise to the level of domestic violence can and should be addressed and resolved by the Chancery Division, Family Part, of the Superior Court without necessarily relying on the [PDVA].

[Ibid.]

In like vein, we recognize that our review of the Family Part's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). Because of the Family Part's special jurisdiction and expertise in family matters, we generally defer to, and are constrained by, such court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. However, that court's legal decisions are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194.

In this case, we are convinced that the Family Part overreached in granting an out-of-home restraint under the posture of the proceedings. Furthermore we are troubled by the abruptness with which the issue arose, and the inability of Alan to fairly respond to the sua sponte restraints imposed by the court in the context of Cari's unsuccessful PDVA complaint.

The first mention of barring Alan from the marital home came after the Family Part exonerated him of committing any acts of domestic violence. The court did not deem Alan's conduct to even be merely evidential of a domestic contretemps, but rather held that no predicate acts under the PDVA were committed. The court relied heavily upon the testimony of Abby in finding that although there was marital conflict between Alan and Cari, it did not meet the requirements for protection under the PDVA.

Then, without alerting the parties to the court's thoughts, the Family Part embarked upon a brief discussion of the children's best interests. There was nothing in the FV action that materially touched upon those best interests, and although the court certainly maintained the raw authority to oversee the condition of the children, the manner of addressing those interests trampled Alan's rights.

Neither Alan nor Cari had an opportunity to present detailed and relevant evidence about the children living at home and the effect of both parents' presence vis- -vis their well-being. In the absence of an emergency, the Family Part should not have acted without either giving the parties fair notice of its intentions, or waiting for a proper application to be made by one or both of the parties pursuant to Roberts v. Roberts, 106 N.J. Super. 108 (Ch. Div. 1969) and its progeny.

In Roberts, the plaintiff in a pending divorce action sought by motion to enjoin the defendant from entering the marital residence because of "physical extreme cruelty." Id. at 109. The defendant challenged the trial court's ability to grant such relief. Ibid. The motion judge denied the relief sought by the motion, but ordered a plenary hearing on the issue. Id. at 110. In S. v. A., 118 N.J. Super. 69, 70 (Ch. Div. 1972), the same judge premised his authority to exclude a wife from the marital home on the best interests of the children residing there. Ibid.; see also Degenaars v. Degenaars, 186 N.J. Super. 233, 235 (Ch. Div. 1982); Babushik v. Babushik, 157 N.J. Super. 128, 129 (Ch. Div. 1978).

In this case, the only evidence concerning the best interests of the children came from the testimony of the understandably upset teenage daughter of the parties. We neither minimize nor denigrate that testimony, but note that it was an insufficient foundation upon which to construct the out-of-home restraint imposed by the court. It neither afforded the parties a fair opportunity to develop best interests evidence nor permitted them to adequately examine and cross-examine their daughter on those provocative issues.

Because the restraint has now been in effect for almost one year, and we do not know how it has evolved and affected all of the family's members, in reversing the Family Part, we vacate the restraints at this time, but stay our judgment until June 30, 2011. Furthermore, we remand the matter under Docket No. FM-07-2128-10, for the Family Part to address the issue of parental occupation of the marital home by appropriate proceedings to be completed before that date.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

1 We have elected to use fictitious names for the parties.

2 To the extent necessary in order to invoke our appellate jurisdiction regarding the FM order, we consider Alan's notice of appeal from the FV proceeding as an application for leave to appeal the FM matter, and grant leave to appeal nunc pro tunc. Since the parties have fully briefed all of the issues relating to the inter-related orders, there is no prejudice from this procedural irregularity.

3 Although Cari's appellate brief contends that this was improper service of the complaint, it further indicates that an answer and counterclaim in the FM matter was filed on August 12, 2010, shortly before the notice of appeal was filed.