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.Respondents 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
DOCKET NO. A-007-97
On Appeal from
A Final Judgment of the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County
Hon. Charles Delehey, JSC
Appellant’s Reply Letter
Brief and Appendix
The Law Office of
David Perry Davis
315 Market Street
Attorney for defendant
Perry Davis, Esq.
the Letter Brief
Table Of Contents
Table of Contentsii
Statement of Facts1
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 INAPPROPRIATE6
Table of Contents to Appendix
Temporary Restraining Order and Complaint1a-4a
The Law Office of
David Perry Davis
315 Market Street
(609) 989-5868 (fax)
R. Cox, Clerk
Re:Gretel v. Essex
Docket No. A-007-97
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
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).
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).
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.
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).
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.
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.
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).
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 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).
defendant’s conduct constituted harassment, it does not automatically follow
that the conduct constituted “domestic violence.”
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
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).
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.
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.
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.
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.
relevantly, this Court should note that the letter isfrom 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
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.
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.
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
Attorney for defendant
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