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Hayes v. Hayes

Decided: July 22, 1991.


Seltzer, P.J.F.P.


This opinion is filed to expand upon the reasons previously given for my refusal to enforce the child-support provisions of a domestic violence order. That refusal has res judicata implications and requires an analysis of the nature of domestic violence proceedings. The present motion arises from the provisions of a final order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 et seq., as the result of the following history.

On February 19, 1991, plaintiff filed a complaint seeking emergent injunctive relief under the Prevention of Domestic Violence Act. The complaint requested the entry of an order prohibiting defendant from going to plaintiff's residence or place of employment or having contact with her in any way. The complaint did not seek support for either plaintiff or the parties' 18-month-old child, nor did it seek custody of the child. On the same day, after appropriate findings, a temporary ex parte restraining order was entered, N.J.S.A. 2C:25-13(c), granting the requested relief and awarding custody to plaintiff. No child support was ordered. A hearing on the complaint was scheduled for February 28, 1991. Both parties appeared on that date and the hearing was ultimately conducted on March 7, 1991. On that date, 29 other final hearings and 4 contempt trials were also scheduled.

After testimony was received from both parties, a finding of domestic violence was entered. At this point, and for the first time, defendant sought visitation and plaintiff sought child support. Although no such relief had been requested in the complaint and no counterclaim had been filed, the court recognized the nature of domestic violence proceedings and, in effect, treated the requests as cross-motions to amend the pleadings and proceeded to consider the requests. Cf. Maksuta v. Higson, 242 N.J. Super. 452, 577 A.2d 185 (App.Div.1990). During a brief colloquy in which the court attempted to elicit sufficient facts to permit the entry of some temporary order, the parties

advised that there was a support action pending. With the income information gleaned from the participants in the short period of time available, the court entered a final order on March 7, 1991. That order: (1) made the restraints permanent, (2) awarded temporary custody of the minor child to plaintiff subject to specified visitation with defendant, and (3) fixed a weekly support obligation of $45 "until a decision is made in the pending support action."

In fact no such support action was pending. Instead a dissolution action was instituted on April 9, 1991. No further action appears to have been taken with respect to support until June 10, 1991, when plaintiff filed a motion in the dissolution action seeking enforcement of the child-support provisions of the domestic violence order. The motion sought to compel compliance by incarceration, presumably pursuant to R. 1:10-5.

Ordinarily, defendant would be bound by the judgment of a court awarding child support (and, assuming an ability to comply, could be incarcerated until he did so) by virtue of the doctrine of res judicata. That doctrine "as a principal of law bars a party from relitigating a second time that which was previously fairly litigated and finally determined." Charlie Brown of Chatham v. Board of Adjustment, 202 N.J. Super. 312, 327, 495 A.2d 119 (App.Div.1985). The rule, however, is not absolute. "Among the recognized exceptions to the general rule of preclusion are cases where a new determination is warranted by differences in the quality or extensiveness of the procedures in the two tribunals." Taha v. DePalma, 214 N.J. Super. 397, 400, 519 A.2d 905 (App.Div.1986). Accordingly, if the child support provisions of the domestic violence order are "final," the order must be enforced -- it would be, after all, a permanent order modifiable only on a showing of changed circumstances. If it is not a "final" order, it may not be entitled to strict enforcement. I turn, therefore, to a consideration of whether support provisions of domestic violence orders

are entitled to the same respect accorded other final support orders.

Domestic violence actions, by their very nature, are heard expeditiously and "frequently are conducted without the formality of counsel." Maksuta v. Higson, supra, 242 N.J. Super. at 454, 577 A.2d 185. For that reason, the technicalities of pleading do not bar relief and litigants should be permitted, as they were here, to amend their pleadings at the time of trial to obtain appropriate relief. Id. at 454-455, 577 A.2d 185. Clearly, the proceedings do not permit a full exploration of the factors fixing child support. In fact, many of the litigants appear, as they did here, to seek child support in an action which may give no notice of the application.

Accordingly, much of the information which is obtained at the hearing is information which the parties did not anticipate providing and which cannot be verified. Indeed, much of it may be unreliable. Moreover, a final order in the domestic violence action could not be entered within the statutorily mandated ten-day period if postponements were granted to ensure a proper discovery period. For example, R. 5:5-2 requires that a case information statement be filed in all contested family actions in which there is any issue as to support. Often, because of the complexity of the financial disclosure required, accurate and complete information may require several weeks to collect. While a support order must be entered to protect the victim and to prevent a hesitancy to use the system for fear of financial distress, we must recognize that the order entered may bear little relation to the appropriate support.

Besides the failure of the parties to prepare for an inquiry leading to a support order, there is a further barrier to an accurate assessment of the parties' financial situation. That barrier is the sheer number of cases which must be determined at any one time. By statute, all final hearings must be heard within ten days of the issuance of the ...

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