R.L.U. v. J.P.

 

(NOTE: The status of this decision is Published.)

                          RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-4823-16T1


R.L.U.,
                                            APPROVED FOR PUBLICATION
        Plaintiff-Respondent,
                                                    December 4, 2018

v.                                                APPELLATE DIVISION


J.P.,

     Defendant-Appellant.
________________________________

              Submitted October 11, 2018 – Decided December 4, 2018

              Before Judges Simonelli, Whipple and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FV-02-1615-17.

              DeGrado Halkovich, LLC, attorneys for appellant
              (Adamo Ferreira and Felicia Corsaro, on the brief).

              Respondent has not filed a brief.

        The opinion of the court was delivered by

WHIPPLE, J.A.D.
      Defendant, J.P., appeals from an April 19, 2017 order granting a final

protective order against him pursuant to the Sexual Assault Survivor Protection

Act (SASPA),  N.J.S.A. 2C:14-13 to -21. For the reasons that follow, we reverse.

      In 2005, defendant pled guilty to endangering plaintiff, R.L.U., when she

was eleven-years-old.  N.J.S.A. 2C:24-4(a). Defendant was sentenced to a

three-year suspended term and parole supervision for life. He was ordered to

have no contact with plaintiff and was required to register under Megan's Law.

      On March 13, 2017, plaintiff was working at a convenience store when

defendant walked in and approached her for the first time since 2005. Defendant

allegedly yelled, "he could not believe they let people like [her] work there,"

"she knew who the fuck he was," "that people like her ruin people's lives," "he

knew the owner and was going to get her fired," and as he was leaving said,

"don't worry, I got you homie." Ten days later, defendant returned to the

convenience store, came up to the glass door, stared at plaintiff for five seconds,

and then left. Plaintiff called the police who advised her to seek a restraining

order under SASPA.       The police also issued a municipal court summons

charging defendant with harassment.

      On March 27, 2017, plaintiff was granted a temporary order of protection

pursuant to SASPA. On April 19, 2017, a Family Part judge issued a final

protective order following a two-day hearing. Prior to the Family Part judge


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hearing testimony from either party, defendant moved to dismiss, arguing

SASPA, as applied, violated the ex post facto clause of the United States and

New Jersey Constitutions. The Family Part judge denied the motion, reasoning

SASPA was a civil statute designed to protect sexual assault victims and did not

violate the ex post facto clause. Thereafter, having heard credible testimony

from plaintiff that defendant had intercourse with her in 2005, the Family Part

judge concluded the 2005 intercourse was a sexual assault and was a predicate

act triggering the right to SASPA protection. On April 19, 2017, the court

entered an order of protection. Consequently, the entry of such order against

defendant constituted a parole violation, which triggered the revocation of

defendant's parole. 1

      On June 21, 2017, the Family Part judge denied defendant's motion for

reconsideration. This appeal followed. On July 14, 2017, we denied defendant's

application for a stay pending appeal.




1
  The record only contains a Special Report of the Division of Parole ordering
defendant be held pending a probable cause hearing. The circumstances of arrest
findings include the issuance of the final restraining order as well as violations
of Rules 16 and 18 of the parole supervision for life certificate. Based upon the
record, we do not know the parameters of the aforementioned rules or if
defendant's parole revocation was also based upon a charge of violating the
sentencing provision that defendant have no contact with the plaintiff. In any
event, the circumstances surrounding defendant's parole revocation are not
before us.
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      On appeal, defendant argues the Family Part judge erred by entering a

SASPA order because SASPA requires a predicate act to have occurred after its

enactment, not before. He argues the protective order imposed an ex post facto

penalty and SASPA was unconstitutionally applied.

      We are constrained to agree with defendant's statutory interpretation

argument and therefore do not reach his constitutional argument. SASPA cannot

be used to impose a restraining order on defendant based on conduct that

occurred before SASPA's effective date.        SASPA does not permit such

retroactive application. We do not fault the good intentions of the Family Part

judge; however, the court's reliance upon the 2005 assault as a predicate for the

2017 order of protection was error.

      "We have a strictly limited standard of review from the fact-findings of

the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C.,  415 N.J.

Super. 551, 577 (App. Div. 2010). We defer to the factual findings of the Family

Part judge because of her opportunity to make first-hand credibility judgments

about the witnesses who appeared on the stand. N.J. Div. of Youth & Family

Servs. v. M.C. III,  201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth &

Family Servs. v. E.P.,  196 N.J. 88, 104 (2008)). However, we review questions

of law de novo. Smith v. Millville Rescue Squad,  225 N.J. 373, 387 (2016).




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      Signed into law on November 9, 2015, SASPA was intended by the

Legislature to expand the remedies available to victims of sexual violence.

 N.J.S.A. 2C:14-13 to -21; Senate Judiciary Committee, Sexual Assault Survivor

Protection Act of 2015, S. 2164-4078 (N.J. 2015) (hereinafter Senate Judiciary

Report).   Prior to SASPA, victims of sexual violence could only obtain a

restraining order under the Prevention of Domestic Violence Act of 1991

(PDVA),  N.J.S.A. 2C:25-17 to -35. However, the PDVA defined "victim of

domestic violence" as: a spouse, former spouse, a person with whom the

defendant had a child in common, or a person with whom the defendant had a

dating relationship.  N.J.S.A. 2C:25-19(d). This meant a person subjected to

sexual violence in a random encounter or in less than a dating relationship had

no way to obtain a restraining order. SASPA was intended to fill this void.

      SASPA provides:

            Any person alleging to be a victim of nonconsensual
            sexual contact, sexual penetration, or lewdness, or any
            attempt at such conduct, and who is not eligible for a
            restraining order as a "victim of domestic violence" as
            defined by [the PDVA], may . . . file an application with
            the Superior Court . . . alleging the commission of such
            conduct or attempted conduct and seeking a temporary
            protective order.

            [N.J.S.A. 2C:14-14(a)(1).]2

2
  "'Sexual contact' 'means an intentional touching by the victim or actor, either
directly or through clothing, of the victim's or actor's intimate parts for the
purpose of degrading or humiliating the victim or sexually arousing or sexually
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A Superior Court judge can issue an emergency ex parte temporary protective

order "upon good cause shown."  N.J.S.A. 2C:14-15(d). Within ten days, the

trial judge can conduct a hearing and issue a final protective order if supported

by a preponderance of the evidence.  N.J.S.A. 2C:14-16(a). A final protective

order requires a finding of nonconsensual sexual contact, penetration, or

lewdness, and "the possibility of future risk to the safety or well-being of the

victim." Senate Judiciary Report.

      Thus, SASPA protects victims of unwanted sexual contact or lewd acts or

attempts to commit the same. A person cannot seek protection against words,

threats, or sexual harassment alone under SASPA. Here, the trial court found

plaintiff's account credible and defendant admitted speaking to her. It is clear

plaintiff felt threatened by the encounters and the court was concerned for the

future risk to plaintiff's safety and well-being; however, there is no evidence

defendant made or attempted to make physical contact with plaintiff. Thus, the

question is whether defendant's 2005 sexual assault can be the basis of a SASPA

order. We conclude it cannot.


gratifying the actor.'"  N.J.S.A. 2C:14-14(a)(1). "'Sexual penetration' 'means
vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or
insertion of the hand, finger or object into the anus or vagina either by the actor
or upon the actor's instruction.'" Ibid. "'Lewdness' 'means the exposing of the
genitals for the purpose of arousing or gratifying the sexual desire of the actor
or of any other person.'" Ibid.

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      "Generally, newly enacted laws are applied prospectively." Johnson v.

Roselle EZ Quick LLC,  226 N.J. 370, 387 (2016). "This approach is based on

long-held notions of fairness and due process . . . ." Ibid. (quoting Cruz v. Cent.

Jersey Landscaping, Inc.,  195 N.J. 33, 45 (2008)). One can overcome this

presumption by demonstrating the Legislature intended retroactive application.

The question then becomes whether enforcement of a retroactive law will

"unconstitutional[ly] interfere[] with 'vested rights' or will result i n a 'manifest

injustice.'" Ibid. (quoting Twiss v. State,  124 N.J. 461, 467 (1991)).

      Legislative intent of retroactivity can be shown: "(1) when the Legislature

expresses its intent that the law apply retroactively, either expressly or

implicitly; (2) when an amendment is curative; or (3) when the expectations of

the parties so warrant." Ardan v. Bd. of Review,  231 N.J. 589, 610 (2018)

(quoting James v. N.J. Mfrs. Ins. Co.,  216 N.J. 552, 563 (2014)). At least one

source of intent must be shown before a statute can be given retroactive effect.

Cruz,  195 N.J. at 46. Legislative intent may be observed expressly in the statute

or implicitly in legislative history showing retroactive application is "the most

sensible interpretation." Johnson,  226 N.J. at 388. "A statute is curative 'if it is

designed to merely carry out or explain the intent of the original statute[,]' in

that its purpose is 'to remedy a perceived imperfection in or misapplication of a

statute and not to alter the intended scope or purposes of the original act.'" Ibid.


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(alteration in original) (quoting Nelson v. Bd. of Educ.,  148 N.J. 358, 370

(1997)). In absence of legislative intent, courts should examine whether the

parties expected the law to apply retroactively. James,  216 N.J. at 565.

      In a similar context, in D.C. v. F.R., we concluded the PDVA applied

prospectively, not retroactively.  286 N.J. Super. 589, 604-07 (App. Div. 1996).

In 1994, the PDVA's definition of "victim of domestic violence" was expanded

to include persons subjected to violence by persons he or she dated. Id. at 597.

D.C. involved domestic violence that occurred in 1993 in a dating relationship,

prior to the amendment going into effect. Id. at 598-99. We held instances of

domestic violence that occurred before the amendment was passed were not

covered by the PDVA, but an act that occurred in 1994 was grounds for entry of

an order. Id. at 607.

      The text of SASPA makes no mention of retroactivity and our review of

SASPA's legislative history reveals no suggestion retroactive application was

intended. To the contrary, the Legislature took a distinctly prospective approach

by providing SASPA would not "take effect [until] the 180th day following

enactment." L. 2015, c. 147, § 11. There is nothing to suggest "retroactive

application may be necessary to make the statute workable or to give it the most

sensible interpretation." Gibbons v. Gibbons,  86 N.J. 515, 522 (1981); see also

Johnson,  226 N.J. at 388. Nor is SASPA curative. "To be 'curative,' a statutory


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provision must be 'designed to remedy a perceived imperfection in or

misapplication of a statute.'"     Ardan,  231 N.J. at 611 (internal quotations

omitted) (quoting James,  216 N.J. at 564). "[A]n amendment is curative if it

does 'not alter the act in any substantial way, but merely clarifie[s] the legislative

intent behind the [previous] act.'" Ibid. (alterations in original). "Generally,

curative acts are made necessary by inadvertence or error in the original

enactment of a statute or in its administration." Ibid. Here, the statute was

enacted to expand remedies, not correct specified defects.

      Furthermore, in this case, the parties did not expect SASPA to apply

retroactively.    Plaintiff's SASPA application listed defendant's acts of

harassment and intimidation, but not an act or attempt of physical contact.

Because of his 2005 guilty plea, defendant was subject to conditions of parole

supervision for life and a no-contact order, but he had no reason to expect a

future, collateral consequence of his crime.

      Therefore, the court erred in concluding defendant's 2005 sexual assault

served as the predicate act for a SASPA order. Defendant's actions in the

convenience store were not acts or attempts at nonconsensual sexual contact

with plaintiff.   Thus, we are constrained to reverse.         We need not reach

defendant's constitutional arguments under the ex post facto clause for the




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proper disposition of this matter. See O'Keefe v. Passaic Valley Water Comm'n,

 132 N.J. 234, 240 (1993).

      Reversed.




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