M.D. v. T.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5841-05T15841-05T1

M.D.,

Plaintiff-Respondent,

v.

T.H.,

Defendant-Appellant.

___________________________________

 

Submitted September 5, 2007 - Decided September 10, 2007

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-003209-06.

T.H., appellant pro se.

No brief was filed on behalf of respondent.

PER CURIAM

This is an appeal by defendant, T.H., from a final restraining order finding defendant in violation of the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. On May 8, 2006, plaintiff, M.D., filed a domestic violence civil complaint, as a result of which a temporary restraining order was entered on the same day by a Family Part judge. The complaint alleged that on March 29, 2006, defendant approached plaintiff while she was getting off the bus and asked her to drop the criminal case she had pending against him. The complaint also alleged that on May 5, 2006, defendant followed her while she was walking to school. The complaint asserted that defendant committed terroristic threats, sexual assault, stalking, and criminal sexual contact. The complaint listed plaintiff and defendant as cousins and former household members.

A plenary hearing was held on May 15, 2006. At the time, plaintiff testified that she was seventeen years old. Plaintiff related that on July 30, 2005, she was beaten by defendant, causing her to be taken by ambulance to St. Barnabas Medical Center. As a result of the assault, criminal charges were filed against defendant. Plaintiff also testified that, subsequent to the filing of criminal charges, defendant accosted her several times and threatened her safety if she did not drop the criminal charges.

Defendant denied assaulting plaintiff or ever threatening her. He presented testimony from his niece and plaintiff's cousin, K.H., who initially corroborated plaintiff's account to the police concerning the assault. She also confirmed in court that plaintiff was "pretty badly beaten up." However, when asked by the judge who assaulted M.D., K.H. stated that she did not know the assailant. K.H. claimed that she tried to change her story; however, she admitted that she has never told anyone else that her initial statement to the police was false.

The judge found plaintiff's testimony concerning the assault and defendant's approaches believable. She found defendant and K.H.'s version not credible and concluded that defendant assaulted plaintiff on July 30 and harassed her by threatening her in connection with the criminal complaint on several occasions. During the initial stages of the proceeding, in response to plaintiff's testimony that the police told her that she could not get a temporary restraint, the judge stated, "[w]ell one of the ways you can get it is if you lived together." The judge then asked M.D. if she and defendant had been household members, to which M.D. replied, "Um-hum."

Defendant asserts, for the first time on appeal, that the Family Part did not have jurisdiction to hear the case because plaintiff is not a protected person under the Act. Because defendant's contention addresses the jurisdiction of the trial court, we consider the issue, although not previously raised. See Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999).

Defendant relies on the recent decision in M.A. v. E.A., 388 N.J. Super. 612, 618 (App. Div. 2006), holding that a person under the age of eighteen who has neither been married, in the military service, a parent, nor pregnant, is ineligible to bring a complaint under the Act in the absence of a dating relationship with the defendant. N.J.S.A. 2C:25-19d provides:

"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.

In order for plaintiff to qualify as an "emancipated minor" and thus receive protection under the Act from domestic violence perpetrated by a member of the household, plaintiff, as a person under eighteen years of age, must be a person "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 record before us lacks the requisite proof that would entitle plaintiff, age seventeen, to relief. Given the "boundaries of the present statute," we are constrained to reverse the decision of the Family Part judge. M.A., supra, 388 N.J. Super. at 620. Presumably, if found guilty on the criminal charges and placed on probation, defendant will be prevented from having contact with the victim of his crime. As expressed in M.A., if the Legislature "had desired to expand the statute to cover all [victimized] unemancipated minors, it surely knew how to express that desire." Id. at 618.

 
Reversed.

The testimony related that the assault occurred on July 30 or July 31.

(continued)

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5

A-5841-05T1

RECORD IMPOUNDED

September 10, 2007