L.D.L. VS. D.J.L. (FV-15-1837-18, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-5390-17T3
L.D.L.,
Plaintiff-Respondent,
v.
D.J.L.,
Defendant-Appellant.
____________________________
Submitted May 20, 2019 – Decided June 12, 2019
Before Judges Haas and Susswein.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FV-15-1837-18.
Villani & De Luca, attorneys for appellant (Benjamin
M. Hoffman, on the briefs).
Bronzino Law Firm, LLC, attorneys for respondent
(Peter J. Bronzino and Alexander M. Jimenez, on the
brief).
PER CURIAM
Defendant D.J.L. appeals from a June 2018 final restraining order (FRO)
entered in favor of plaintiff L.D.L. pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The sole issue raised on
appeal is whether the trial court had personal jurisdiction over defendant.
For the reasons that follow, we conclude that the trial court had personal
jurisdiction based on two independent circumstances. First, defendant
submitted to the jurisdiction of the State of New Jersey by appearing in court,
by declining the trial judge's invitation for an adjournment to seek the services
of counsel, and by participating fully in the plenary hearing. Second, even if
defendant had not appeared in this State, the multiple phone calls he made to
plaintiff after she had fled to New Jersey satisfy the "minimum contacts"
required to establish personal jurisdiction. Accordingly, we affirm the grant of
the FRO.
I.
We derive the following facts from the record. The parties were married
in April 2016 and resided in Roanoke County, Virginia. As of May 2018 , the
parties planned to get a divorce. Plaintiff no longer resided in the marital home
and moved to New Jersey to reside with her father. During the month of May,
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plaintiff often drove from New Jersey back to the marital home in Virginia to
collect her belongings.
On May 31, 2018, at about 8:00 a.m., defendant arrived at the marital
home just as plaintiff was leaving the residence in her car to return to New
Jersey. Defendant attempted to wave plaintiff down, but she drove around him.
Defendant got into his car and pursued plaintiff. While stopped at a traffic light,
defendant repeatedly bumped the back of plaintiff's car with his car. Defendant
got out of his car and started to bang his fists on plaintiff's window while saying
"I'm gonna kill you" and "revenge is mine." Once the light turned green,
defendant returned to his car and continued his pursuit of plaintiff, following
her onto an interstate highway. Plaintiff estimated that defendant followed her
for approximately twenty minutes to a half hour and for about fifteen to twenty
miles before finally giving up the pursuit.
Defendant later texted plaintiff "Game on," and left a voicemail stating,
"Hey, had a great time this morning. Can't wait to do it again. See you soon.
Love you bye." While plaintiff was in New Jersey, at around 10:30 p.m.,
plaintiff called defendant at defendant's request. At one point, plaintiff
attempted to terminate the telephone conversation by stating, "I wanna go. I'm
gonna go[,]" to which defendant replied "I'll see you soon." Plaintiff told
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defendant that he will not see her again and he responded by saying, "Yes, you
will. Oh, yes, you will." Plaintiff ceased all communication with defendant, but
defendant attempted to contact plaintiff by phone and left several voicemail
messages over the course of the next couple of days. Plaintiff testified that she
was afraid of defendant due to the history of past abuse and his unpredictability
due to his post-traumatic stress disorder.
The next day, plaintiff filed a domestic violence complaint in Ocean
County, New Jersey, pursuant to the PDVA. The FRO hearing was held on June
11, 2018, before the Honorable Valter H. Must, P.J.F.P. Both parties appeared
pro se and both were advised by Judge Must that they could request an
adjournment to afford an opportunity to seek the assistance of counsel. Both
parties declined the opportunity to request an adjournment and both indicated
that they were prepared to proceed with the FRO hearing.
At the beginning of the hearing, defendant remarked, "My only question,
your Honor, is, you know, it happened in Virginia. She came here. I don't
understand." The judge explained that he could not give legal advice and again
told defendant that he would be willing to adjourn the matter to give defendant
an opportunity to obtain or consult with legal counsel. Defendant did not request
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an adjournment and stated that he was aware of the ramifications should a FRO
be entered against him. The court continued with the hearing.
At the conclusion of the hearing, the court found that jurisdiction was
proper in New Jersey because plaintiff had fled from Virginia. See N.J.S.A.
2C:25-28(a). The court also found that defendant had submitted to the personal
jurisdiction of the State of New Jersey by appearing in court. With regard to the
substance of the plenary hearing, the court found plaintiff's testimony to be more
credible than defendant's testimony. The court concluded that plaintiff had not
established by a preponderance of the evidence that defendant had committed
the alleged predicate act of criminal mischief. The court did find, however, that
plaintiff had proven by a preponderance of the evidence that defendant had made
a terroristic threat under N.J.S.A. 2C:12-2, and had committed harassment in
violation of N.J.S.A. 2C:33-4. The court also found that plaintiff was in need
of the protection of a restraining order to protect her from immediate danger and
further abuse, whereupon the court entered the FRO.
II.
Defendant on appeal does not contest the trial court's factual findings. Nor
does defendant contest that the court had subject matter jurisdiction ove r the
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domestic violence incident. The sole issue raised in this appeal is whether the
court had personal jurisdiction over defendant.
To address that issue, we first consider the legal principles governing this
appeal, including the standard of review that we apply. The question as to
whether a court has personal jurisdiction over a party is a question of law, and
thus the standard of review is de novo. YA Global Investments., LP v. Cliff,
419 N.J. Super. 1, 8 (App. Div. 2011). Defendant did not formally raise the
issue of personal jurisdiction prior to or during the FRO hearing. 1 As such, we
apply the plain error standard to determine whether the trial court's exercise of
jurisdiction and ensuing issuance of the FRO was "of such a nature as to have
been clearly capable of producing an unjust result." R. 2:10-2.
The judgment of a court lacking personal jurisdiction violates the Due
Process Clause of the Fourteenth Amendment. Pennoyer v. Neff, 95 U.S. 7141
Defendant on appeal acknowledges that the question he posed to the trial court
at the outset of the FRO hearing "may not be seen as a formal objection." He
nonetheless contends that he "raised the issue of the events associated with the
restraining order occurring in Virginia and appeared to be confused as to why
the matter was occurring in New Jersey." Defendant's question to the trial court
seems to pertain more to the issue of subject matter jurisdiction rather than
personal jurisdiction. In any event, we do not interpret defendant's question as
constituting an objection to the FRO hearing on jurisdictional grounds,
especially given that defendant declined the court's repeated offer to adjourn the
hearing so that defendant could obtain counsel.
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(1877). However, a state court's assertion of personal jurisdiction does not
violate due process if the defendant has "certain minimum contacts with it such
that the maintenance of the suit does not offend 'traditional notions of fair play
and substantial justice.'" Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)
(quoting Miliken v. Meyer, 311 U.S. 457, 463 (1940)); A.R. v. M.R., 351 N.J.
Super. 512, 519 (App. Div. 2002). "The 'minimum contacts' requirement is
satisfied so long as the contacts resulted from the defendant's purposeful conduct
and not the unilateral activities of the plaintiff." Lebel v. Everglades Marina,
Inc., 115 N.J. 317, 323 (1989) (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297-98 (1980)). The evaluation of whether a defendant
has the requisite minimum contacts with New Jersey is done on a case-by-case
basis. Shah v. Shah, 184 N.J. 125, 138 (2005).
Unlike subject matter jurisdiction, personal jurisdiction can be waived.
Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703
(1982) (finding that "[b]ecause the requirement of personal jurisdiction
represents first of all an individual right, it can, like other such rights, be
waived."); see YA Global Investments, 419 N.J. Super. at 9 (concluding that
"[p]ersonal jurisdiction is a 'waiveable right,' that is, a non-resident defendant
may choose to consent to the jurisdiction of a particular court."). Furthermore,
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and of particular importance in this case, an individual can submit to the
jurisdiction of the court by appearing before the court and failing to raise the
defense of lack of jurisdiction. Ins. Corp. of Ir., 456 U.S. at 703-04; see
McDonald v. Mabee, 243 U.S. 90, 91 (1917).
In J.N. v. D.S., 300 N.J. Super. 647 (Ch. Div. 1996), the defendant sought
to dismiss the complaint for lack of both subject matter and personal
jurisdiction. The court explained:
Should the abuser choose to submit to the jurisdiction
of the State of the New Jersey, he/she would be entitled
to a hearing where the victim and the alleged abuser
would be afforded the opportunity to testify, present
witnesses and cross[-]examine those testifying against
them before a final order would be entered. Should the
abuser choose not to have the matter adjudicated in the
courts of the State of New Jersey, there would be no
final restraining order entered on the merits, but the
victim would have the protection needed so long as the
victim remains in the State of New Jersey [2]. Nothing
compels the abuser to answer the complaint in New
Jersey and no penalties can be entered or imposed
against the abuser by default.
[Id. at 651.]
2
A domestic violence victim can be granted an ex-parte temporary restraining
order that can remain in effect indefinitely. See Shah, 184 N.J. at 143 (affirming
that "'[a]n order for emergency, ex parte relief…shall remain in effect until a
judge of the Family Part issues a further order.' N.J.S.A. 2C:25-28(i).").
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III.
We next apply these legal principles to the particular circumstances of this
case. Although defendant was not compelled to answer the complaint in New
Jersey, he drove from Virginia to New Jersey, appeared in court, repeatedly
declined the opportunity to seek counsel, confirmed that he understood the
ramifications of the FRO, and proceeded to engage in a plenary FRO hearing
where he was given the opportunity to testify and cross-examine plaintiff. In
doing all of that, defendant relinquished the defense of lack of personal
jurisdiction and submitted to the jurisdictional authority of the cou rt.
Defendant, who is now represented on appeal, contends that he should not
be deemed to have waived the jurisdictional argument because he was
unrepresented and thus unable to make a knowing waiver of his constitutional
rights. Defendant cites to no legal authority, however, for the proposition that
a defendant appearing pro se does not waive the defense of lack of personal
jurisdiction when he or she elects to forego an offered adjournment and decides
instead to go forward with the FRO hearing. Nor does defendant cite to any
legal authority for the proposition that the trial court was obligated to conduct a
waiver colloquy similar to a guilty plea in a criminal matter. We appreciate the
challenges facing pro se litigants in domestic violence matters. However,
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having made the decision to proceed without counsel by declining the court's
offer of an adjournment on no less than three occasions during the hearing,
defendant is hard pressed to argue on appeal that he did not know to make legal
arguments that an attorney might have made on his behalf.
The situation would have been different if defendant had taken advantage
of the opportunity to secure a continuance. In that event, his limited appearance
in court to ask for an opportunity to obtain legal counsel might not have
constituted a waiver of the defense of lack of personal jurisdiction, and the
jurisdictional issue might instead have been preserved for his counsel to litigate
before the trial court. That is not what happened here. By declining the court's
invitation to adjourn the matter and by proceeding to fully litigate the domestic
violence complaint on its merits, defendant left the trial court with no choice but
to conclude that defendant had waived any potential jurisdictional defense.
We see no due process violation in holding a defendant to his election to
proceed to trial without counsel. Although due process does not require the
appointment of counsel for indigent defendants, it "does allow litigants a
meaningful opportunity to defend against a complaint in domestic violence,
which would include the opportunity to seek legal representation, if requested. "
D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013). Defendants, of course,
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also have the right to forego legal representation and proceed pro se, something
that occurs frequently in domestic violence cases in this State.
When a defendant in a domestic violence matter elects to go forward with
the plenary hearing without counsel after having been given an opportunity to
obtain an attorney, our legal system must proceed on the assumption that the
unrepresented defendant is competent to protect his or her own legal interests
and to make binding litigation decisions, including decisions as to potential legal
and factual defenses. Were it otherwise, all FROs entered against pro se
defendants would be subject to reversal if they later asserted on appeal that they
did not fully appreciate the significance of their litigation decisions . The point
simply is that once a defendant declines the opportunity for an adjournment to
obtain counsel, the trial court must proceed as if the litigant knows the law and
the legal ramifications of his or her strategic and tactical trial decisions,
notwithstanding that an attorney might have made different decisions and
presented different defense arguments.
We therefore conclude that defendant in this case waived the lack-of-
personal-jurisdiction defense and submitted to the jurisdiction of the court by
deciding to allow the FRO plenary hearing to go forward. Nevertheless, even if
we were to accept defendant's argument that he did not knowingly waive the
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lack-of-personal-jurisdiction defense, and even if he had never set foot in this
State, there still would be an independent basis for finding personal jurisdiction.
This was not a situation as in Shah where it was "conceded that defendant ha[d]
zero contacts with the State of New Jersey." 184 N.J. at 139. Rather, defendant
made several phone calls to plaintiff after she had returned to New Jersey a nd
after she told him that she did want to communicate with him. This was
purposeful conduct directed at a person who defendant knew or reasonably
should have known was residing in New Jersey. Those purposeful actions
satisfy minimum contacts with this State necessary to vest the trial court with
jurisdiction to consider plaintiff's terroristic threat and harassment complaint
under the PDVA. See A.R. v. M.R., 351 N.J. Super. 512, 519-29 (App. Div.
2002) (holding that defendant's placement of telephone calls to the plaintiff in
this State gave New Jersey jurisdiction over the defendant, even though the
defendant placed the calls while he was in Mississippi and even though the
content of those calls could not be characterized as violations of the PDVA).
For the foregoing reasons, we conclude that the trial court had personal
jurisdiction over defendant and properly granted the FRO.
Affirmed.
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