S.M. v. I.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

S.M.,

Plaintiff-Respondent,

v.

I.A.,

Defendant-Appellant.

___________________________

September 22, 2015

Submitted September 16, 2015 Decided

Before Judges Messano and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No.FV-12-000186-12.

I.A., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant I.A. appeals from the August 21 and 26, 2013 Family Part orders, which denied his motion to vacate an amended final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, based on assault, N.J.S.A. 2C:12-1, stalking, N.J.S.A. 2C:12-10, and harassment, N.J.S.A. 2C:33-4(c).1 For the following reasons, we affirm.

The facts are straightforward. On May 2, 2012, a grand jury indicted defendant for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and simple assault, N.J.S.A. 2C:12-1(a), a disorderly persons offense. The charges stemmed from defendant's alleged assault of plaintiff S.M. on July 11, 2011.

On July 13, 2011, plaintiff obtained a temporary restraining order against defendant, alleging assault, stalking, harassment, and terroristic threats. Following a trial on November 30, 2011, the court found by a preponderance of the evidence that defendant committed the predicate acts of assault, harassment and stalking, but not terroristic threats. The court entered a FRO that day and later entered an amended FRO on December 19, 2012.

On June 3, 2013, a jury found defendant not guilty of the criminal charges. On June 12, 2013, defendant filed a motion to dismiss the FRO based on the jury's verdict. In a written opinion, the court first noted that because the criminal case required proof beyond a reasonable doubt, a higher standard than the preponderance standard in a PDVA case, an acquittal in the criminal case had no effect on the grounds that led to the issuance of the FRO in the first place. Citing State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007), the court determined that the two matters were separate proceedings and the result in one case did not result in res judicata or collateral estoppel in the other case. The court memorialized its decision in an August 21, 2013 order, which was amended on August 26, 2013 to include a provision denying defendant's request to appoint a guardian ad litem for the parties' child.

On appeal, defendant contends that given the jury's verdict in the criminal matter, continuing the FRO, which was based on assault and harassment, constitutes double jeopardy. We disagree.

Defendant's double jeopardy claim is inapplicable to this civil matter. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against a second prosecution in a criminal action for the same offense after a conviction or an acquittal, and also prohibits multiple punishments for the same offense. State v. Widmaier, 157 N.J. 475, 489-90 (1999). A complaint brought under the PDVA is a civil action separate and distinct from a criminal action. Brown, supra, 394 N.J. Super. at 504. In Brown, we explained

As the [PDVA] demonstrates, the purpose of an action in the Family Part, designed to protect an individual victim, is quite different than a criminal case in which the State prosecutes a defendant on behalf of the public interest. The [PDVA] was enacted to assure the victims of domestic violence the maximum protection from abuse the law can provide. The [PDVA] further states that [a] victim shall not be prohibited from applying for, and a court shall not be prohibited from issuing, temporary restraints pursuant to this act because the victim has charged any person with commission of a criminal act.

[Ibid. (quoting N.J.S.A. 2C:25-18 and -26(f)) (internal quotation marks omitted).]

A prosecutor does not participate in domestic violence proceedings other than a contempt matter and, for the most part, testimony given by either party in a domestic violence hearing "shall not be used in the simultaneous or subsequent criminal proceeding against the defendant." N.J.S.A. 2C:25-29(a). In Brown, we also explained that application of the collateral estoppel doctrine, which is embodied within the double jeopardy clause, "would be inconsistent with the State policy underlying the handling of [domestic violence] cases and is not warranted as a matter of constitutional law." Brown, supra, 394 N.J. Super. at 505. Accordingly, the continued vitality of the FRO following the jury verdict in defendant's criminal matter is not a double jeopardy violation.

Additionally, because the preponderance of the evidence standard applies to proceedings under the PDVA, see, e.g., Crespo v. Crespo, 408 N.J. Super. 25, 36 (App. Div. 2009), aff'd. o.b., 201 N.J. 207 (2010), and the much higher "beyond a reasonable doubt" standard applied to defendant's criminal prosecution, the court properly concluded that the judgment of acquittal was "not a determination that the alleged incident that [led] to the issuance of the FRO did not take place."

Affirmed.

1 In a May 29, 2014 order, this court denied defendant's motion for leave to file a notice of appeal as within time from a final restraining order entered on November 30, 2011 and an order entered on January 27, 2012. Accordingly, our review is limited to the August 26, 2013 order.