A.L.I. VS. D.W. (FV-14-0719-16, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-5230-15T3
A.L.I.,
Plaintiff-Appellant,
v.
D.W.,
Defendant-Respondent.
____________________________________
Submitted May 23, 2017 – Decided July 12, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Morris
County, Docket No. FV-14-0719-16.
Einhorn, Harris, Ascher, Barbarito & Frost,
attorneys for appellant (Thomas J. Snyder,
Bonnie C. Frost and Dorothy J. Kenney, on the
brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff A.L.I. appeals the dismissal of an action she
commenced against her second cousin, defendant D.W., pursuant to
the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-
17 to -35. The action was dismissed, at the conclusion of a four-
day final hearing, because the trial judge found plaintiff was not
a "victim of domestic violence," which, in relevant part, is
defined in N.J.S.A. 2C:25-19(d) as a person who has been subjected
to domestic violence by a person who "was at any time a household
member." Based on his factual findings about the nature of the
parties' relationship, to which we defer, Cesare v. Cesare, 154
N.J. 394, 410-11 (1998); D.N. v. K.M., 429 N.J. Super. 592, 596
(App. Div. 2013), certif. denied, 216 N.J. 587 (2014), we conclude
the trial judge properly found plaintiff did not fit this statutory
definition and we, therefore, affirm.
The Act's reach toward past household members has, at times,
proved difficult for our courts. In considering the statute's
prior language – which defined "victim of domestic violence" as
including a person who has been subjected to domestic violence by
"any person who is a present or former household member" – we
rejected the Act's application to a dispute between adult siblings
who lived together during their childhood but had "not resided
together in the same household for twenty years." Jutchenko v.
Jutchenko, 283 N.J. Super. 17, 20 (App. Div. 1995). We also
recognized, when considering the former statutory language, that
courts must look to determine whether the "perpetrator's past
domestic relationship with the alleged victim provides a special
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opportunity for abusive and controlling behavior." Tribuzio v.
Roder, 356 N.J. Super. 590, 595 (App. Div. 2003); see also N.G.
v. J.P., 426 N.J. Super. 398, 409 (App. Div. 2012).
The case at hand arose after August 10, 2015, the effective
date of the amended statute. See L. 2015, c. 98, § 2. Recently,
we held that the new definition, which changed the phrase "former
household member" to a person who "was at any time a household
member," widened the net of cases falling within the Act's
jurisdiction. R.G. v. R.G., 449 N.J. Super. 208, 210 (App. Div.
2017). Indeed, the new statutory language would seem to cover even
the circumstance we found insufficient in Jutchenko.
Notwithstanding this broader scope, the Act was not amended to
include family relations that were never members of the same
household, as here.
As noted above, the parties are second cousins. The events
that precipitated this action commenced when, in December 2015,
defendant stayed in the home of her cousin, plaintiff, and
plaintiff's husband, for ten days. When defendant ended this visit,
plaintiff's husband went with her and they began cohabiting. In
February 2016, defendant and plaintiff's husband ended a trip to
Florida and, on the way to plaintiff's home in Boonton, defendant
made threatening and abusive phone calls to plaintiff. On February
22, 2016, both defendant and plaintiff's husband arrived at
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plaintiff's home. Defendant again spoke abusively toward plaintiff
and physically attacked her, prompting plaintiff's filing of a
complaint, which resulted in the issuance of a temporary
restraining order on March 2, 2016.
A four-day trial occurred over the course of non-consecutive
days in April, May and June 2016. At the conclusion of the hearing
on June 20, 2016, the judge rendered an oral decision and concluded
that the failure of the proofs to demonstrate plaintiff fell within
N.J.S.A. 2C:25-19(d) required dismissal.1 The family judge,
however, stayed this final order pending "a resolution of
plaintiff's appeal" – a ruling that presumably left in place the
temporary restraining order.
Plaintiff appeals, arguing, in a single point, that "the
scope and nature of the parties' relationship qualifies plaintiff
as a 'victim'" as defined by N.J.S.A. 2C:25-19(d) "based on the
remedial nature of the statute and the most expansive reading of
the statute which seeks to prevent violence that occurs in a family
or family[-]like settings." We disagree.
1
Despite finding a lack of jurisdiction due to his findings
regarding the relationship between the parties, the judge also
found, in greater detail, that – if there was a sufficient
relationship – defendant engaged in domestic violence that would
have warranted entry of a final restraining order.
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The judge correctly determined that plaintiff did not meet
the definition of "victim of domestic violence." Although the
judge applied the statute's prior iteration rather than the current
version, the judge's findings, which are firmly grounded on the
evidence deemed credible, demonstrate that the parties were never
household members. They are second cousins. And, though they may
have occasionally stayed under the same roof on visits to
plaintiff's mother's condominium in Florida when they were young
girls, or though they may have taken vacations together and had
overnight visits in each other's home over the years, they were
never, at any time, members of the same household.
Consequently, we reject the only argument posed by plaintiff
in this appeal.
Affirmed.2
2
The stay imposed by the trial judge will remain in effect for
fourteen days from today's date unless plaintiff moves for the
continuation of the stay pending a petition for certification,
and, in that instance, the stay will remain in effect until there
is a ruling on that motion.
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