NOTE: I WAS NOT THE ORIGINAL ATTORNEY ON THIS APPEAL, NOR WAS I TRIAL COUNSEL

Back to The Law Office of David Perry Davis, PC – notable cases: http://www.dpdlaw.com/notable.htm

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.^[1]

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^[2] 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

^[1] The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide. .... The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context. The Legislature finds that battered adults presently experience substantial difficulty in gaining access to protection from the judicial system, particularly due to that system's inability to generate a prompt response in an emergency situation. It is the intent of the Legislature to stress that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim.... It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.