ANA P. VALENZUELA v. ALVARO VALENZUELA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0430-05T3d0430-05T3

ANA P. VALENZUELA,

Plaintiff-Respondent,

v.

ALVARO VALENZUELA,

Defendant-Appellant.

____________________________________

 

Argued March 15, 2006 - Decided July 14, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Chancery Division - Family Part,

Monmouth County, Nos. FV-13-209-06 and

FV-13-245-06.

Joseph Defino argued the cause for appellant

(Jacobowitz, Defino, Latimer, Fradkin, Comer &

O'Toole, attorneys; Mr. Defino, of counsel;

Marybeth Hershkowitz, on the brief).

Paul N. Weeks argued the cause for respondent.

PER CURIAM

Carmen Barenechea appeals from certain provisions of a final restraining order entered on August 22, 2005, under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse.

This matter commenced with Ana Valenzuela and Alvaro Valenzuela, husband and wife, filing cross-complaints against each other, each alleging that the other had committed an act of domestic violence. Both parties testified, and the trial court accepted the testimony of Ana Valenzuela and rejected that of her husband. There is no issue before us with regard to that determination.

At the time of the incident which led to the filing of the domestic violence complaints, the parties were living at 915 Orchard Road in Red Bank with their two children--Lorenzo, three years of age, and Christian, ten months old. Alvaro had proceeded immediately to the police department and filed a domestic violence complaint against Ana. In support of his assertion that she had assaulted him, he displayed a small laceration on his neck and redness around one of his eyes. A complaint was issued, and Patrolman Clark was dispatched to the residence to place Ana under arrest.

Ana had gone to a neighbor's house to seek aid and call the police, Alvaro having removed the phones from the house. That neighbor was not at home, however. She returned to 915 Orchard Road where Patrolman Clark placed her under arrest. Corporal Hall advised her of her right to file a cross-complaint, but she did not do so immediately. Patrolman Clark did not see any signs of bruising. Based upon Alvaro's complaint, a temporary restraining order was entered which barred Ana from the residence.

During the hearing which took place on August 22, 2005 (by which time divorce proceedings had been initiated), it developed that the residence at 915 Orchard Road was held in the name of Alvaro and his mother, appellant Carmen Barenechea. Prior to moving to New Jersey, Ana and Alvaro had lived in Seattle in a home that Carmen had purchased. When the parties relocated to New Jersey, that house was sold and the funds used to purchase and renovate 915 Orchard Road. It is apparent from the transcript that the house needed substantial renovations before it could be occupied; while those renovations were in progress, Ana stayed in Bayonne. Alvaro divided his time between Bayonne and supervising the renovation work in Red Bank.

It was also brought out at the hearing that Ana, a native of Brazil, was in the country without a green card. All the couple's funds were held in Alvaro's name. Ana did have an ATM card which permitted her access to funds passing to her following her father's death, but at some point Alvaro cut up that card.

At the conclusion of the hearing, after deciding that Alvaro had committed an act of domestic violence, the trial court decided that Ana should be permitted to return to 915 Orchard Road with the children. Alvaro protested, saying the house was owned by his mother and himself and that his mother and sister were in the house as well. He offered to pay $2500 a month for an apartment for Ana and the children while their divorce action proceeded, but the trial court rejected that proposal. It entered a final restraining order giving Ana exclusive possession of the premises.

Several days later, Ana and her mother-in-law, appellant Carmen Barenechea, appeared before the court on orders to show cause. Ms. Barenechea contended that the trial court lacked any jurisdiction over her to order her to vacate the premises that she owned. Ana asserted that when she returned to the house she found it essentially stripped of the furniture and appliances and the utilities turned off. Ms. Barenechea admitted taking certain of the items, contending she had purchased them. Alvaro's attorney denied that as many items had been taken as Ana contended. At the end of the proceedings, the trial court directed that the utilities be restored and that defendant would be responsible for the water, sewer, electric and telephone charges. Despite the fact that Ms. Barenechea was not a party to the proceeding and had received no notice that an order was about to be entered against her, the trial court continued in place the earlier order giving Ana exclusive possession of 915 Orchard Road. Ms. Barenechea has appealed from that provision, which effectively bars her from premises she owns.

We do not fault the good intentions of the trial court, but we are satisfied that the trial court erred when it entered this order. It is fundamental that a trial court only has jurisdiction to enter orders affecting those who are parties before it. D.C. v. F.R., 286 N.J. Super. 589 (App. Div. 1996), illustrates the principle. D.C. and F.R. had been involved in a dating relationship; when plaintiff sought to end their relationship, defendant began to harass and stalk her. Id. at 599. In our opinion, we characterized his conduct as "alarming and sometimes bizarre." Ibid. Eventually, D.C. sought the protection of a restraining order entered under the Domestic Violence Act. Id. at 600-01. The trial court entered such an order, but also entered an order against F.R.'s parents, who had become embroiled in the dispute. Ibid. We reversed, noting that no complaint had ever been filed against them, they had not filed any pleadings, and had not had the opportunity to present any witnesses, engage in cross-examination or have an attorney represent their interests. Id. at 609.

The same scenario was presented here. Ms. Barenechea was never a party to the domestic violence dispute between her son and her daughter-in-law. She was never served with a complaint and, legally, was a stranger to the proceedings.

We have, moreover, recently recognized that even consent is an insufficient basis to support the entry of a domestic violence order in the absence of a complaint having been filed charging the party with an act of domestic violence. Franklin v. Sloskey, ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op. at 7) (noting, "It is clear from the record the trial judge issued an FRO against Franklin solely because he consented to one during the stress of the hearing, without there ever having been a complaint filed, or charges of domestic violence asserted against him. This was clearly improper and a fundamental violation of Franklin's constitutional right to due process and a fair trial.").

The jurisdiction of a court hearing domestic violence matters, moreover, is statutorily circumscribed. N.J.S.A. 2C:25-29(a) provides in pertinent part: "An order issued under this act shall only restrain . . . a person against whom a complaint has been filed under this act and only after a finding or an admission is made that an act of domestic violence was committed by that person." "Clearly, unless a finding is made that the person charged with conduct violative of the Act has committed an act of domestic violence, the court lacks a jurisdictional basis to enter a final restraining order . . . ." P.J.G. v. P.S.S., 297 N.J. Super. 468, 471 (App. Div. 1997). Here, the trial court did not find that Ms. Barenechea had committed an act of domestic violence; indeed, it could not have, in light of the fact that she was not even charged with an act of domestic violence.

On the return date of Ms. Barenechea's order to show cause, the trial court expressed concern that if Ms. Barenechea and plaintiff resided in the house together, there was a "possibility of future unnecessary discord." That "possibility," however, is an insufficient basis to disregard the lack of a jurisdictional predicate for the action of the trial court.

We recognize that we write from the perspective of an appellate court and that we are unfamiliar with the present status of the matter. We deem it unwise, therefore, to direct the immediate restoration of Ms. Barenechea to the premises. We reverse the order under review and remand the matter to the trial court to craft an appropriate order.

 
Reversed and remanded for further proceedings. We do not retain jurisdiction.

____________________________________

FUENTES, J.A.D., dissenting

In this domestic violence case between husband and wife, the majority correctly concluded that the trial court did not have jurisdiction over the husband's mother, Carmen Barenechea, because she "was not a party to the proceeding and had received no notice that an order was about to be entered against her. . . ." Majority Opinion (slip op. at 4-5). In fact, Barenechea has not been adjudicated as having committed any act of domestic violence against plaintiff. Despite these findings, the majority deems it "unwise" to reverse the trial court's restraining order against Barenechea forthrightly, opting instead to remand "the matter to the trial court to craft an appropriate order." Majority Opinion (slip op. at 7).

Although I share the majority's well-intended desire to provide this troubled family with a measure of tranquility, I cannot in good conscience subscribe to what, in my view, is an analytically inconsistent ruling. Once we determined that the trial court lacked jurisdiction over Barenechea, the court is rendered powerless to issue any order affecting her freedom of movement.

In a domestic violence case, the court's authority is derived exclusively from the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Domestic violence restraining orders have serious consequences to a defendant, and therefore should not be entered without an adequate factual basis. Chernesky v. Fedorczyk, 346 N.J. Super. 34, 41 (App. Div. 2001).

The continuation of restraints against an individual over whom the court admits it has no authority, even when motivated by good faith concerns, is facially untenable, and amounts to a gross violation of that individual's constitutional right to Substantive Due Process. See Sonntag Reporting Serv., Ltd. v. Ciccarelli, 374 N.J. Super. 533, 538 (App. Div. 2005).

I therefore respectfully dissent.

 

A defendant who violates a domestic violence restraining order may be charged with contempt pursuant to N.J.S.A. 2C:29-9b, a crime of the fourth degree. A second conviction requires a minimum term of incarceration of not less than thirty days. N.J.S.A. 2C:25-30.

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RECORD IMPOUNDED

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July 14, 2006