E.C v. P.C

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2778-10T2

E.C.,

Plaintiff-Respondent,

v.

P.C.,

Defendant-Appellant.

_______________________________________

December 9, 2011

Argued October 12, 2011 Decided

Before Judges Yannotti, Espinosa and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-212-11.

Damiano M. Fracasso argued the cause for appellant.

Joseph T. Maccarone argued the cause for respondent.

PER CURIAM

Defendant appeals from an order entered by the Family Part on January 27, 2011 in this matrimonial action, which enforced an order entered by the court on September 30, 2010 in a related domestic violence case and ordered defendant to vacate the marital residence within a specified period of time. We affirm.

The parties were married in 1996, and they have three children, who were born in 1996, 1998 and 2002, respectively. In December 2009, defendant filed a complaint against plaintiff pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35 (the DV action). On January 19, 2010, the trial court entered a final restraining order (FRO) against plaintiff. Among other things, the FRO granted defendant exclusive possession of the marital residence.

On January 27, 2010, the Division of Youth and Family Services (Division), received a report that defendant had physically abused one of the children. The Division found that the report of physical abuse was not substantiated; however, the Division was informed that defendant had been abusing alcohol. According to the Division, the children expressed concerns about remaining in the home with defendant and said that they would feel safer if they resided with plaintiff.

On January 28, 2010, the Division effected an emergency removal of the children from the home and placed them in plaintiff's care. The Division then filed a verified complaint in the trial court seeking an order granting it responsibility for the care and supervision of the children and transferring custody of the children to plaintiff. On February 2, 2010, the court granted the Division's application and entered an order placing the children in plaintiff's custody.

Thereafter, the children moved in with plaintiff and his friend. On April 1, 2010, plaintiff filed a notice of appeal from the FRO entered in the DV action. In June 2010, we dismissed plaintiff's appeal for failure to prosecute. In July 2010, plaintiff filed a motion seeking to reinstate the appeal.

On July 30, 2010, plaintiff filed a motion in the DV action seeking an order: 1) modifying the FRO to grant him possession of the marital home so that he could reside there with the children, 2) requiring defendant to pay the mortgage, insurance and utility bills for the home, and 3) directing defendant to pay child support. The motion was returnable on September 30, 2010.

On September 16, 2010, plaintiff filed the complaint in this matrimonial action. The following day, we granted plaintiff's motion to reinstate his appeal from the FRO. The appeal was subsequently dismissed. On the morning of September 30, 2010, defendant filed a voluntary petition in bankruptcy in the United States Bankruptcy Court.

Later in the day on September 30, 2010, the trial court entered an order in the DV action, which: 1) granted plaintiff's request to modify the FRO; 2) required defendant to vacate the marital home within twenty-one days; 3) required plaintiff to continue paying all utility bills, mortgage payments and expenses of the household; and 4) directed defendant to pay child support.

Thereafter, defendant filed a motion to dismiss the divorce action due to various claimed deficiencies in the form and service of the complaint. Plaintiff filed a cross-motion seeking, among other relief, enforcement of the September 30, 2010 order in the DV action.

In a certification submitted to the trial court in support of his motion, plaintiff asserted, among other things, that he had been informed that his youngest child had to remain in the marital home if she wanted to continue to attend her school. Defendant opposed plaintiff's motion. She argued that the trial court did not have jurisdiction of the case when the September 30, 2010 order was entered because the automatic stay in the bankruptcy action precluded the court from granting the relief sought by plaintiff.

On January 27, 2011, the trial court considered defendant's motion and plaintiff's cross-motion. On that day, the court entered an order: 1) denying defendant's motion to dismiss the divorce action; 2) granting plaintiff's motion for enforcement of the September 30, 2010 order in the DV case; 3) requiring defendant to vacate the marital home within three days or a bench warrant would be issued for her arrest; 4) denying plaintiff's request to find a violation of litigant's rights; and 5) denying plaintiff's request for counsel fees.

The trial court denied defendant's motion for a stay of the January 27, 2011 order pending appeal. Defendant then filed a notice of appeal with this court and a motion seeking an emergent stay of the trial court's order. We entered a temporary stay of the order but thereafter denied defendant's motion for a stay pending appeal.

Defendant first argues that the trial court's January 27, 2011 order must be reversed because that order enforced the court's September 30, 2010 order, which modified the FRO previously entered. Defendant contends that the September 30, 2010 order is void for lack of jurisdiction because an appeal from the FRO was pending at the time.

Rule 2:9-1(a) provides that, "[e]xcept as otherwise provided . . . the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed." This rule generally deprives the "court below of jurisdiction to act further in the matter under appeal unless directed to do so by the appellate court." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:9-1(a) (2012).

We agree with defendant that on September 30, 2010, the trial court did not have jurisdiction to modify the FRO in the DV action because plaintiff's appeal from the FRO was pending at the time. However, plaintiff's appeal from the FRO was dismissed on November 4, 2010, thereby returning jurisdiction in the DV matter to the trial court.

The January 27, 2011 order essentially reaffirmed the relief that the trial court granted on September 30, 2010. Indeed, the facts that led to the entry of the earlier order remained the same. Consequently, the trial court had jurisdiction in the DV case when it entered the order on January 27, 2011 requiring defendant to vacate the marital home.

Next, defendant argues that the September 30, 2010 order was void because the automatic bankruptcy stay precluded the trial court from entering that order. Again, we disagree.

The filing of a bankruptcy petition operates as a stay of certain actions that may affect the debtor's assets. 11 U.S.C.A. 362. Among the actions stayed are the "commencement or continuation . . . of a judicial . . . proceeding against the [defendant] that was or could have been commenced" before the filing of the petition. 11 U.S.C.A. 362(a)(1). Also stayed is "any act to obtain possession of property of the [bankruptcy] estate or . . . to exercise control over property of the estate." 11 U.S.C.A. 362(a)(3).

However, there are several exemptions to the automatic stay established by 11 U.S.C.A. 362(b). Those exemptions include actions "concerning child custody or visitation[,]" 11 U.S.C.A. 362(b)(2)(A)(iii); actions "for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the [bankruptcy] estate[,] 11 U.S.C.A. 362(b)(2)(A)(iv); and domestic violence actions, 11 U.S.C.A. 362(b)(2)(A)(v).

We are satisfied that the automatic stay did not preclude the trial court from entering the September 30, 2010 order or the January 27, 2011 order. As noted previously, the orders were entered in a domestic violence case. Furthermore, the orders granting possession of the marital home to plaintiff were in furtherance of the court's earlier determination awarding plaintiff custody of the parties' three children. Moreover, the orders do not provide for the equitable distribution of marital property.

Indeed, when the trial court entered the January 27, 2011 order, it stated on the record that plaintiff could not "list the home for sale, distribute the property, refinance the home or apply for a second mortgage." The court stated that it was "merely permitting plaintiff to reside in the marital home with the children" since that was in the children's best interest.

Thus, the automatic stay in 11 U.S.C.A. 362 did not preclude the trial court from entering the September 30, 2010 and January 27, 2011 orders. We are satisfied that the matters addressed by these orders fall squarely within the exemptions to the automatic stay in 11 U.S.C.A. 362(b)(2)(A) (iii), (iv) and (v).

Defendant additionally argues that the record does not support the trial court's decision requiring her to vacate the marital home so that plaintiff can reside there with the children. In our view, this argument is without merit.

Here, the court noted that the children had been moved from the marital home after plaintiff was awarded custody. Plaintiff and the children were living with his friend in what the court characterized as "cramped quarters." The court observed that the children had been subject to the disruption caused by their parents' tumultuous relationship. The record shows that plaintiff had been informed that one of the children could not continue attending her school unless she resided in the marital home. The court found that it was in the children's best interest to remain in the marital home.

Factual findings of the trial court are binding on appeal unless they "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, because family courts have "special jurisdiction and expertise in family matters, appellate courts should accord deference" to the factfinding of those courts. Id. at 413. We are satisfied that there is sufficient credible evidence in the record to support the trial court's factual findings.

Defendant further argues the trial court lacked personal and subject matter jurisdiction over her in the matrimonial action because of certain deficiencies in the complaint filed in that action and the service thereof. Defendant's argument is without merit.

While the January 27, 2011 order was technically entered as a result of a cross-motion filed by plaintiff in the matrimonial case, the relief sought related to the FRO entered in the DV action. Defendant initiated the DV action and the trial court undoubtedly had jurisdiction over both parties in that matter. To the extent there were any deficiencies in the matrimonial complaint or its service, it had no bearing whatsoever on the court's jurisdiction to enter further relief in the DV case.

We have considered defendant's other contentions and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.