On appeal from Superior Court, Chancery Division, Family Part, Morris County.
Pressler, Long and Landau. The opinion of the court was delivered by Landau, J.A.D.
This is an appeal by defendant G.K. from a judgment entered by the Chancery Division, Family Part, in an action brought by her husband E.K. invoking jurisdiction under N.J.S.A. 2C:25-1 to 25-16, the Prevention of Domestic Violence Act.
The K.s were married in 1977. It was a troubled alliance.
In 1986 they mutually agreed to adopt a young Polish boy and he was warmly received by G.K. The K. marriage was severely strained, however, when they returned to Poland to choose a second child for adoption. G.K. was extremely reluctant to accept and adopt K.K., a young girl later described by a court appointed psychologist to have "certain cognitive, social, and physical development delay." K.K. was adopted, however, because of E.K.'s concededly adamant insistence.
The marital problems of the K.s, and the reciprocal absence of affinity between G.K. and K.K. evident from the time of their first meeting, were conditions which aggravated and fed upon each other.
In January 1989, an evidential hearing was held on E.K.'s domestic violence charges. The evidence included a report and recommendation by an independent psychologist designated by the court, a DYFS report and recommendations, and testimony by the parties and a DYFS representative. It is not necessary to review in detail all of the evidence. It suffices to note that
as in most cases of chronic marital discord, causation was not a one-sided issue. Indeed, there had been some history of involvement by the parties in psychotherapy since 1983.
At the outset, it is critical to note that this appeal does not address an action for custody of children, See R. 5:8-1, et seq., or an action by the Division of Youth and Family Services, or custody issues under a matrimonial action for divorce, nullity or separate maintenance. Indeed, the record makes it clear that the Division of Youth and Family Services has been actively monitoring the treatment of the children, because of complaints filed by E.K. Moreover, it appears that there is pending a divorce action initiated by G.K. in which she seeks custody of the children.
At issue on this appeal is the narrow question of whether it was proper for the trial judge to enter an order under the Prevention of Domestic Violence Act which derived its jurisdiction only from E.K.'s contention that "harassment" within the meaning of N.J.S.A. 2C:25-3b(10) was established under the following theory of his complaint:
Plaintiff expressed his view towards discipline for the children of the marriage to the defendant, however, despite this, the defendant continued to discipline the children in the same manner causing harassment to the plaintiff. This coupled with the marital difficulties, DYFS involvement and an injury to the child constitutes domestic violence and requires the need for a Restraining Order in this matter.
G.K. has conceded that she lost her temper and acted violently towards K.K. on one occasion. G.K. has, however, denied any other purposeful acts of violence toward the child. Indeed, the trial judge found that a head injury suffered by K.K. during the admitted incident was accidental and unanticipated. K.K. had been shaken by G.K. while in the kitchen, and struck her head on the corner of a kitchen cabinet during the incident. Several other suspicious incidents, ...