B.C. VS. V.C. (FV-03-1788-16 AND FV-03-1789-16, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5323-15T2
B.C.,
Plaintiff-Appellant,
v.
V.C.,
Defendant-Respondent.
______________________________
Submitted May 23, 2017 – Decided June 23, 2017
Before Judges Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Burlington County, Docket Nos. FV-03-1788-16
and FV-03-1789-16.
Legal Services of New Jersey, attorneys for
appellant (Melville D. Miller, Jr., Monica C.
Gural, Mary M. McManus-Smith, and Jeyanthi
Rajaraman, on the brief).
Salvatore D. DePinto, attorney for respondent.
PER CURIAM
In these consolidated appeals, plaintiff B.C. appeals family
court orders dismissing complaints she filed on behalf of her two
minor children seeking final restraining orders against their
father, defendant V.C., pursuant to the Sexual Assault Survivor
Protection Act of 2015 (SASPA), N.J.S.A. 2C:14-13 to -23. The
court found N.J.S.A. 14:14-16 unconstitutional as applied to
defendant because it permitted entry of an order barring his
contact with his children based upon proof of the underlying
allegations by a preponderance of the evidence. We conclude it was
unnecessary for the court to decide the constitutional issue
because SASPA did not retroactively apply to the allegations in
the complaints and, therefore, the complaints should have been
dismissed on that basis.
I.
Plaintiff and defendant are the biological parents of
daughters, I.C., born in 2010, and O.C., born in 2012. In 2015,
the New Jersey Division of Child Protection and Permanency (the
Division) filed a Title Nine proceeding against plaintiff and
defendant.1 On January 29, 2016, the court entered orders in the
Title Nine proceeding continuing the care and supervision of the
children with the Division, legal custody of the children with
1
The record on appeal does not include the Title Nine complaint.
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plaintiff and defendant, and physical custody with plaintiff. The
order suspended defendant's parenting time until further court
order. In a separate order entered on January 29, 2016, defendant
admitted he was part of a family in need of services based on the
children's statements to authorities.
On April 26, 2016, following a compliance review, the court
entered an order in the Title Nine proceeding continuing the
previous custody order, but permitting defendant to have weekly
supervised visitation with the children.
Two weeks later, on May 11, 2016, plaintiff filed separate
complaints on behalf of each child seeking entry of restraining
orders against defendant pursuant to SASPA. The complaints alleged
defendant sexually assaulted each child from "2013 through March
2015." Based on the allegations in the complaints, and fourteen
months after the end of defendant's alleged conduct, the court
entered a May 11, 2016 SASPA temporary restraining order that in
pertinent part barred defendant from any contact with his children.
In the proceedings on plaintiff's requests for final
restraining orders under N.J.S.A. 2C:14-16, the court dismissed
the SASPA complaints, finding the statute was unconstitutional as
applied to defendant. N.J.S.A. 2C:14-16 provides that "the
standard for proving the allegations made in the application for
a protective order shall be a preponderance of the evidence." In
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a thoughtful and comprehensive oral opinion, the court reasoned
that because a final restraining order against defendant would bar
him from having any contact with his children, the preponderance
of the evidence standard in N.J.S.A. 2C:14-16 was constitutionally
insufficient to protect defendant's due process liberty interest
in having a parental relationship with his children. The court
concluded that the issuance of a SASPA restraining order barring
contact between a parent and child requires proof by clearing and
convincing evidence and therefore N.J.S.A. 2C:14-16 was
unconstitutional as applied to the SASPA claims against defendant.
On June 20, 2016, the court entered an order dismissing the
SASPA complaints.2 The order also suspended the April 20, 2016
award of supervised parenting time to defendant in the Title Nine
proceeding pending further order of the court. Plaintiff appealed
the court's June 20, 2016 order dismissing the SASPA complaints.
II.
"In our review of a Family Part judge's motion order, we
defer to factual findings 'supported by adequate, substantial,
credible evidence' in the record." Landers v. Landers, 444 N.J.
Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J.
414, 428 (2015)). We accord special deference to the expertise of
2
The court also issued a June 22, 2016 order correcting a clerical
error in the third paragraph of the June 20, 2016 order.
4 A-5323-15T2
the Family Part in its application of legal principles to family
disputes. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "However,
when reviewing legal conclusions, our obligation is different;
'[t]o the extent that the trial court's decision constitutes a
legal determination, we review it de novo.'" Landers, supra, 444
N.J. Super. at 319 (alteration in original) (quoting D'Agostino
v. Maldonado, 216 N.J. 168, 182 (2013)).
On appeal, plaintiff does not challenge the court's
conclusion that a minor child's allegations supporting a final
SASPA restraining order against a parent requires application of
a clear and convincing standard. Plaintiff argues the court erred
by reasoning that the issuance of a SASPA restraining order is
tantamount to a termination of parental rights and thus Title
Thirty's clear and convincing standard is required. Plaintiff
instead argues that, independent of Title Thirty, the clear and
convincing standard is required for the issuance of a SASPA final
restraining order because our Supreme Court has held that a denial
of parenting time is permitted "where it clearly and convincingly
appears that the granting of visitation will cause physical or
emotional harm to the children or where it is demonstrated that
the parent is unfit." V.C. v. M.J.B., 163 N.J. 200, 229 (2000).
Plaintiff also contends that the court's determination the
clear and convincing standard is required should not have resulted
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in the dismissal of the complaints. Plaintiff argues the court
should have held a hearing and applied the standard, and requests
that we vacate the court's order and remand for further
proceedings. Defendant asserts that the court correctly decided
the standard of proof issue and that dismissal of the complaints
was required.
We are mindful that we should not decide issues of
constitutional magnitude unless required for the proper
disposition of a matter. O'Keefe v. Passaic Valley Water Comm'n,
132 N.J. 234, 240 (1993). Here, we have carefully considered the
record and the parties' arguments and find it unnecessary to decide
the constitutional issue upon which the trial court based its
dismissal order. Instead, we are constrained to affirm the
dismissal of the complaints on more basic grounds; plaintiff's
children are not entitled to SASPA relief because the statute was
not in effect when the alleged conduct took place and SASPA does
not apply retroactively.
SASPA permits any person who is the 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'" under the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -33, to obtain
a restraining order against a perpetrator. N.J.S.A. 2C:14-14. Upon
6 A-5323-15T2
the filing of a complaint seeking SASPA relief, the court may
issue a temporary restraining order against the defendant
prohibiting any contact with the alleged victim, N.J.S.A. 2C:14-
15(e), and, after a hearing, issue a final restraining order
barring any contact, N.J.S.A. 2C:14-16(f). A final restraining
order remains in effect until further order of the court, and
either party may petition the court to modify or dissolve the
final order. N.J.S.A. 2C:14-16(i). Where a law enforcement officer
finds probable cause that a SASPA restraining order has been
violated, the defendant may be arrested, N.J.S.A. 2C:14-17, and
prosecuted pursuant to N.J.S.A. 2C:29-9(d) for either a fourth-
degree criminal offense or disorderly persons offense, N.J.S.A.
2C:14-18, depending on the nature of the violations.
SASPA was enacted in 2015, L. 2015 c. 147 § 1, and became
effective on May 9, 2016, two days before plaintiff filed the
complaints here. The complaints, however, did not allege that
defendant engaged in any sexual assault on or after May 9, 2016.
In contrast, the complaints alleged defendant last sexually
assaulted the children in March 2015, fourteen months prior to
SASPA's enactment. We are thus compelled to consider whether SASPA
can be used to impose a restraining order on defendant based on
alleged conduct by defendant that predates the SASPA's effective
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date and indeed the enactment of SASPA. We find that SASPA does
not permit such retroactive application.
"Generally, newly enacted laws are applied prospectively."
Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 387 (2016). "A
venerable principle of statutory construction posits that
'statutes should not be given retrospective application unless
such an intention is manifested by the Legislature in clear
terms.'" D.C. v. F.R., 286 N.J. Super. 589, 602-03 (App. Div.
1996) (quoting Skulski v. Nolan, 68 N.J. 179, 202 (1975)); see
also Gibbons v. Gibbons, 86 N.J. 515, 521-24 (1981). The approach
is founded on "long-held notions of fairness and due process," but
"is no more than a rule of statutory interpretation meant to 'aid
the court in the search for legislative intent.'" Johnson, supra,
226 N.J. at 387 (citations omitted).
Our Supreme Court has explained the standard for determining
whether a statute should be applied retroactively:
"[t]wo questions inhere in the determination
whether a court should apply a statute
retroactively." "The first question is whether
the Legislature intended to give the statute
retroactive application." "If so, the second
question is whether retroactive application is
an unconstitutional interference with 'vested
rights' or will result in a 'manifest
injustice.'" Both questions must be satisfied
for a statute to be applied retroactively.
[Ibid. at 387 (alteration in original)
(citations omitted).]
8 A-5323-15T2
In the analysis of the first question, "legislative intent
for retroactivity can be demonstrated: '(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.'" Ibid. (citations
omitted). Only one of these grounds must be shown in order for a
statute to be given retroactive effect. Ibid.
Measured against these principles, we are convinced there is
no basis to apply SASPA retroactively. To the contrary, the
Legislature provided that SASPA would not take "take effect [until]
the 180th day following enactment." L. 2015, c. 147, § 11. We
discern no basis to conclude the Legislature expressed an intention
to apply the law retroactively. The statute does not expressly
direct retroactive application, a fair reading of the statute
offers no basis to infer that retroactive application was intended,
and there is nothing in the statute suggesting "retroactive
application may be necessary to make the statute workable or to
give it the most sensible interpretation." Gibbons, supra, 86 N.J.
at 522; see Johnson, supra, 226 N.J. at 388; D.C., supra, 286 N.J.
Super. at 604.
Nor is SASPA curative. A curative statute "'merely . . .
carr[ies] out or explain[s] the intent of the original statute[,]'
in that its purpose is 'to remedy a perceived imperfection in or
9 A-5323-15T2
misapplication of a statute . . . ." Johnson, supra, 226 N.J. at
388 (fourth alteration in original) (quoting Nelson v. Bd. of
Educ., 148 N.J. 358, 370 (1997)). "A curative statute may clarify,
but may not change, the meaning of existing law." Ibid. SASPA is
a newly enacted legislative protection for persons not covered by
the PDVA that does not carry out or explain an existing law. SASPA
provides invaluable substantive rights to victims of various forms
of sexual assault, but does not qualify as a curative statute for
purposes of discerning a legislative intent to make it retroactive.
See D.C., supra, 286 N.J. Super. at 607 (finding statute was not
curative where it "create[d] a new category of protected
individuals with substantive and procedural rights that did not
previously exist").
Because there is no clear expression of legislative intent
that SASPA was to be applied retroactively, we consider whether
"the expectations of the parties may warrant retroactive
application" of the statute. Johnson, supra, 226 N.J. at 388
(quoting Gibbons, supra, 86 N.J. at 523). This factor requires a
consideration of the controlling law at the time the statute was
enacted and "the parties' reasonable expectations as to the law."
Ibid. Any expectation of the parties must be "strongly apparent
to the parties in order to override the lack of any explicit or
10 A-5323-15T2
implicit expression of intent for retroactive application." Ibid.
(citation omitted).
We find no basis to conclude that the controlling law or the
parties' reasonable expectations based upon it warrant
retroactive application of SASPA. Prior to SASPA's enactment, the
law was clear; the criminal laws prohibited acts of sexual assault
but the PDVA did not afford unemancipated minors under eighteen
who were victims of parental sexual assault a statutory right to
obtain a restraining order. SASPA provided the statutory right for
the first time. See D.C., supra, 286 N.J. Super. at 607 (finding
the expectations of the parties did not warrant retroactive
application of an amendment to the PDVA to cover individuals dating
relationships because the prohibited conduct under the PDVA also
violated the criminal laws).3
3
We note that the SASPA was subsequently amended to provide that
such relief should instead be sought through the Division:
When it is alleged that nonconsensual sexual
contact, sexual penetration, or lewdness, or
any attempt at such conduct, has been
committed against an unemancipated minor by a
parent, guardian, or other person having care,
custody and control of that child as defined
in N.J.S. 9:6-2, an applicant seeking a
protective order shall not proceed under the
provisions of [SASPA], but shall report the
incident to the Division of Child Protection
and Permanency in the Department of Children
and Families for investigation and possible
11 A-5323-15T2
A statute will not be applied retroactively unless one of the
three factors demonstrating retroactivity is present. Johnson,
supra, 226 N.J. at 387. Our examination of SASPA finds none here.
The statute could not properly be applied retroactively to provide
coverage and a remedy for alleged actions taken fourteen months
before its enactment. In our view, the complaints should have been
dismissed on that basis. There was no need to consider an as
applied constitutional challenge to the statute because it did not
retroactively apply to defendant's alleged actions in the first
instance.
Affirmed as modified.
legal action by the division pursuant to R.S.
9:6-1 et seq. or other applicable law,
including, when appropriate, petitioning the
Superior Court pursuant to P.L. 1974, c. 119
(C.9:6-8.21 et seq.) for a protective order
and other relief on behalf of the applicant
and the unemancipated minor.
[L. 2016, c. 93, § 1, eff. Jan. 9, 2017.]
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