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Note: I was not the original attorney on this appeal,
nor was i trial counsel. The case was
tried by the defendant without an attorney (“pro se“) and the attorney
who filed the appeal wrote an extremely weak brief. Respondent’s counsel was a highly competent member of an
excellent law firm. While I believe the
appellate division should have seen past the technicalities and addressed the
faily simple legal issue, I think the reply brief was a case of “too little,
too late.”
Superior Court
of New Jersey
Appellate Division
DOCKET NO. A-007-97
|
Wanda Gretel
Plaintiff
/ Respondent,
vs.
Jack
Essex
Defendant
/ Appellant
|
|
| | | | | | | | | | | | |
|
Civil Action
On Appeal from
A Final Judgment of
the Superior Court of New Jersey, Chancery Division, Family Part, Mercer
County
Sat below:
Hon.
Charles Delehey, JSC
|
Appellant's Reply Letter
Brief and Appendix
The Law Office of
David Perry Davis
315 Market Street
Trenton, NJ 08611
(609) 989-1500
Attorney for defendant
David
Perry Davis, Esq.
On
the Letter Brief
Table Of Contents
Cover
page i
Table
of Contents ii
Statement
of Facts 1
Procedural
History 1
Legal
Argument
I. THE FAMILY PART WAS WITHOUT JURISDICTION TO ENTER AN ORDER
PURSUANT TO THE PREVENTION OF DOMESTIC VIOLENCE ACT AS THE PARTIES WERE NOT
"HOUSEHOLD MEMBERS" AS DEFINED BY THE ACT 1
II. THE TRIAL COURT ERRED IN FINDING THAT
DEFENDANT'S CONDUCT CONSTITUTED "DOMESTIC VIOLENCE" 4
III. THE MATERIAL WITH WHICH THE RECORD WAS
SUPPLEMENTED DOES NOT ALTER ANY OF THE RELEVANT FACTS, AND IN FACTS SUPPORTS
DEFENDANT'S CONTENTION THAT A DOMESTIC VIOLENCE ORDER IS INAPPROPRIATE 6
Conclusion 7
Table of Contents to
Appendix
Temporary
Restraining Order and Complaint 1a-4a
Final
Restraining Order 5a-7a
The Law Office of
David Perry Davis
315 Market Street
Trenton, NJ 08611
(609) 989-1500
(609) 989-5868 (fax)
DavePDavis@aol.com
June
10, 1999
Emile
R. Cox, Clerk
Appellate
Division
Hughes
Justice Complex
25
Market Street
Trenton,
NJ 08625
Re: Gretel v. Essex
Docket No. A-007-97
Dear Sir:
Please
accept this letter brief in lieu of a more formal brief in reply to the
response brief filed in this matter.
Statement of Facts and
Procedural History
Defendant
relies on the statement of facts and procedural history as outlined in his
appellate brief.
I. THE FAMILY PART WAS WITHOUT JURISDICTION TO ENTER AN ORDER
PURSUANT TO THE PREVENTION OF DOMESTIC VIOLENCE ACT AS THE PARTIES WERE NOT
"HOUSEHOLD MEMBERS" AS DEFINED BY THE ACT.
This is an
appeal from a final restraining order entered against the defendant under the
Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25‑17 to ‑
33(Act). Jurisdiction pursuant to the
Act was based on the parties' status as "former household members"
(1a).
The trial
court noted that "at one time both parties were members of the same
household" (3-20 to 3-21) and the plaintiff testified as to the extent of
the parties' relationship:
MS. GRETEL: I just moved to
the Stamford area on the 1st of September from Southern Georgia, and I'm a
graduate student there. And I rented a
room from Mr. Essex and we have no relationship but we were sharing the
apartment. We were sharing the living
room, kitchen areas, things like that. (4-1 to 4-6).
The
parties were never romantically involved and have no familial
relationship. The plaintiff moved out
two weeks after moving in, on September 15, 1998. (4-25 to 5-1).
The
question before this court is whether a two week sub-tenancy between two
persons who had no other relationship is sufficient to establish jurisdiction
under the Act.
The
Appellate Division has repeatedly held that the Act is intended to protect
victims from the harm caused when parties are involved in a relationship in
which the "perpetrator's past domestic relationship with the alleged
victim provides a special opportunity for abusive and controlling
behavior." South v. North,
304 N.J.Super. 104, 144 citing Smith
v. Moore, 298 N.J.Super. 121, 126 (App.Div. 1997). The Act was enacted to provide protection to
persons battered by their "husbands, partners, and boyfriends." Cesare
v. Cesare, 154 N.J. 394, 397‑98 (1998) (parties husband and
wife) citing Brennan v. Orban,
Jr., 145 N.J. 282, 299 (1996).
The
question of the definition of the phrase "household member" has
already been definitively answered.
Without the requisite relationship, a defendant is not a "household
member" as defined in N.J.S.A. 2C:25‑19(d). Id. at 114.
Under the
test established in Smith and cited with approval in South, the
parties herein, who shared a sub-tenancy relationship for two weeks, do not
constitute "household members" for purposes of the Act.
Plaintiff's
argument that this court should simply strictly construe the words "former
household member" ignores every case that has come to a contrary
interpretation of the phrase. There is
simply no support for the proposition that the issue before the court is one of
statutory interpretation. This argument
has been rejected in every case to interpret the phrase "former household
member." See, e.g. Sperling v. Teplitsky, 294 N.J.Super. 312,
(Ch.Div.1996) (DV Order inappropriate between "former household
members" with no current domestic relationship), Sisco v. Sisco,
296 N.J.Super. 245, (Ch. Div.1996) (DV Order inappropriate between
"former household members" with no domestic relationship for 15 years
between father and daughter), Jutchenko v. Jutchenko, 283 N.J.Super. 17,
(App.Div.1995) (DV Order inappropriate between "former household
members" with no current domestic relationship).
In sum,
the phrase "household member" has been uniformly interpreted to apply
only to parties with a current interpersonal connection. It does not apply to parties whose only
relationship was a two week sub-tenancy.
II. THE TRIAL COURT
ERRED IN FINDING THAT DEFENDANT'S CONDUCT CONSTITUTED "DOMESTIC
VIOLENCE."
Not all
violence constitutes "domestic violence."
Domestic violence is a term
of art which describes a pattern of abusive and controlling behavior which
injures its victim. Corrente v.
Corrente, 218 N.J. Super. 243, 246 (App.Div. 1995).
Even if
defendant's conduct constituted harassment, it does not automatically follow
that the conduct constituted "domestic violence."
The legislative
findings which undergird the act are clear in that they relate not to all
violence, but to violence that occurs within the peculiar cycle of an abusive
interpersonal relationship.
It is not
coincidental that an interpersonal relationship existed in every reported
case in which an Order entered pursuant to the Act was upheld. See,
e.g., Cesare v. Cesare, 154 N.J. 394, 397‑98 (1998)
(parties husband and wife), Kanaszka v. Kunen, 313 N.J.Super. 600
(App.Div. 1998) (parties had dating relationship), Sweeney v. Honachefsky,
313 N.J.Super. 443 (App.Div. 1998) (parties had dating relationship), J.F.
v. B.K., 308 N.J.Super. 387 (App.Div. 1998) (parties had dating
relationship), Bryant v. Burnett, 264 N.J.Super. 222,
(App.Div.1993) (parties were romantically involved cohabitants).
As the
Appellate Division stated in Corrente:
In enacting the domestic
violence law, the Legislature did not create a new class of offenses or
interdict acts which otherwise were not addressed by the criminal law, but ensured
that spouses who were subjected to criminal conduct by their mates had full
access to the protections of the legal system. Id. at 248.
In order
for violence to constitute "domestic violence" and trigger the
protections of the Act, the violence must occur in a "family or family‑like
setting." Smith v. Moore,
298 N.J.Super. 121, 126 (App.Div. 1997). In light of plaintiff's testimony that "[she] rented a room
from Mr. Essex and [they] have no relationship," (4-1 to 4-6) the
requisite "family or family-like setting" does not exist.
III. THE MATERIAL WITH WHICH THE RECORD WAS
SUPPLEMENTED DOES NOT ALTER ANY OF THE RELEVANT FACTS, AND IN FACT SUPPORTS
DEFENDANT'S CONTENTION THAT A DOMESTIC VIOLENCE ORDER IS INAPPROPRIATE.
By leave
of this court, plaintiff supplemented the record to include a letter indicating
that defendant, who is a graduate of Stamford University, was banned from the
campus for a period of two years due to repetitive emails and phone calls.
Initially,
this Court should note that the decision to declare a person persona
non-grata and to ban them from the University is made in an ex-parte
hearing; defendant was not permitted to participate in any way nor to offer
evidence in his defense. Specifically,
defendant maintains that the number of phone calls cited in the letter is greatly exaggerated, and (as it is a
toll call from his residence to the University) he would have provided phone
bills to confirm this the University granted him a hearing.
More
relevantly, this Court should note that the letter is from October of 1997.
Were there a scintilla of evidence that defendant had ever violated the
University's request that he remain off campus, it would have been provided to
this Court. It was not because no such
evidence exists. Defendant was asked to
stay off the grounds of his alma mater for
two years and he respected this request.
Neither judicial restraints nor municipal court complaints were
necessary.
Conclusion
The trial
court erred in its findings that it had jurisdiction to enter an Order pursuant
to the Prevention of Domestic Violence Act, as the parties were never
"household members" as that phrase has been interpreted and by its
finding that "domestic violence" has occurred between the parties. These errors require reversal.
A reversal
would not leave the plaintiff with no recourse and no protection from defendant
if in fact criminal harassment occurred.
As this Court stated in Smith, "the offense should have been
prosecuted in municipal court as a disorderly persons offense. N.J.S.A. 2C:33‑4(a)." Id.
at 123.
Under the
undisputed facts of this case, and especially in light of the evidence
(supplied to this Court by plaintiff) that defendant in fact has
respected written requests to cease communication, the restraining Order should
be reversed.
Respectfully
submitted,
David Perry
Davis, Esq.
Attorney for defendant
