On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 02-08-1617.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Braithwaite, Lisa and Winkelstein.
Defendants John Kindt (Kindt) and Stacey Froland Kindt (Froland) are husband and wife. Through a prior marriage, Kindt has two children; he shared custody of the children with their mother, Anne O'Connor (O'Connor), his ex-wife. Kindt and Froland were indicted for, among other offenses, first-degree kidnapping of the children, N.J.S.A. 2C:13-1b(4).
The trial court severed Kindt's and Froland's cases.*fn1
Following a jury trial, Froland was convicted of multiple offenses, including first-degree kidnapping. She claims the kidnapping convictions must be reversed because she had the consent of the children's father, Kindt, to take the children.
Her case is before us on direct appeal, where she raises the following points:
POINT I: DEFENDANT IS INNOCENT AS A MATTER OF LAW BECAUSE THE TAKING WAS NOT UNLAWFUL AS DEFINED IN N.J.S.A. 2C:13-1.
POINT II: THE PROSECUTION ABUSED ITS DISCRETION BY OVERCHARGING THE DEFENDANTS IN CONTRAVENTION OF THE SPIRIT OF THE STATUTE. POINT III: THE PROSECUTOR'S ABUSE OF DISCRETION IS MADE MANIFEST BY THE IMPROPRIETY OF THE APPEARANCE OF HIS INTIMACY WITH A VICTIM.
POINT IV: THE VERDICT OF KIDNAPPING WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT V: DEFENDANT'S IMPROPER CHARGE OF KIDNAPPING TAINTED THE JURY'S DELIBERATIONS ON THE CHARGE OF [INTERFERENCE] WITH CHILD CUSTODY.
Kindt's case has not yet gone to trial. He moved before the Law Division to dismiss the kidnapping charges, claiming the kidnapping statute does not apply to a parent with joint custody who abducts his children. On June 4, 2004, the Law Division judge agreed and dismissed the kidnapping charges against him. We granted the State leave to appeal from that order.
The predominant issue in each case is whether a parent with joint custody can be guilty of kidnapping his or her own child. We conclude that the kidnapping statute applies to such a parent. Accordingly, we affirm Froland's kidnapping conviction and reverse the order of the Law Division that dismissed the kidnapping charges against Kindt.
We take the facts as they apply to Kindt from the Grand Jury proceedings of August 13, 2002. To the extent they differ, we take the facts as they apply to Froland from the evidence at her trial.
Kindt and O'Connor were married in New Jersey in 1985. They later moved to California where they adopted two children: J.K., born on September 1, 1994, and O.K., born on July 19, 1995. Around Thanksgiving 1996, O'Connor and Kindt separated; she moved back to New Jersey with the children to be near her family, and Kindt remained in California.
O'Connor sued Kindt for divorce in New Jersey; a final judgment was entered on May 1, 2000. The parties agreed to joint legal custody of the two children. O'Connor was the parent of primary residence and Kindt the parent of alternate residence. Kindt was to have "reasonable and liberal parenting time with the children" whenever he was able to come to New Jersey, which he frequently did. At times, he would spend two weeks in this State before returning to California; and the children occasionally went to California to visit him.
As part of the parenting arrangement, Kindt had physical custody of the children on alternate holidays. Kindt and O'Connor also agreed that if they resided in the same vicinity during a holiday, they would share holiday time "so that the children [would] be with both parents on those days." Kindt could spend at least five weeks with the children each year, as long as the children were not separated from O'Connor for more than two weeks at a time.
Kindt married Froland in 2000. They rented a home in Brick, New Jersey, where they lived with Froland's young daughter S.F., who had been adopted by Kindt, and Kindt's eighteen-year-old nephew, Matthew Aronson.*fn2 After he moved to New Jersey, Kindt's parenting time was increased by agreement. O'Connor later obtained an order enforcing the agreed-upon parenting schedule.
In accordance with the parties' agreement, the children were with O'Connor on Christmas Day 2000. The following Wednesday morning, December 27, 2000, she dropped them off at Kindt's home, where they were to remain until Friday. The next morning, she returned to bring presents she had forgotten the day before.
Kindt and O'Connor agreed to meet Friday morning, at a doctor's appointment for J.K., to have the children returned to O'Connor. But, because the appointment was cancelled due to an impending snowstorm, on Thursday night O'Connor called Kindt to discuss alternate arrangements to have the children returned to her. O'Connor suggested that she pick up the children on Saturday, December 30, at 9:00 a.m.; but Kindt, after telling O'Connor to "hold on" while he conferred with Froland, told her to come at noon.
At approximately 6:30 p.m. on Friday, December 29, O'Connor called Kindt's home; the phone lines had been disconnected. She went to the Brick home twice that evening and found it to be deserted. After returning to the home the following day to pick up the children, and finding no one there, she went to the police and filed a missing children report.
The police investigation disclosed the following. On searching the Brick home, they located, among other things, three computers that had been stripped of their hard drives. They also located preprinted Federal Express air bills for letters or packages sent to: boat sales establishments in Rumson, New Jersey and Oriental, North Carolina; Passport Express Services, Inc.; and Froland's mother in Nevada.
On December 4, 2000, Kindt, under the pseudonym John Kaliczak, signed a contract to purchase a boat from Sandy Hook Yacht Sales in New Jersey. On December 13, Froland applied for a copy of her daughter's, S.F.'s, birth certificate. The next day, Froland, Aronson and S.F. received passports, with an intended destination of New Zealand. The date of travel was to be December 23, 2000. Kindt later obtained birth certificates for J.K. and O.K., and defendants requested and received medical records for the three children.
On December 27 or 28, 2000, defendants sent a package to Passport Express Services to obtain passports for J.K. and O.K., to travel to the United Kingdom on July 6, 2001. Froland withdrew over $50,000 from her accounts.
Both Kindt and Froland sent letters to their respective families, informing them that they had taken the children and intended to flee to a jurisdiction friendly to their position - that Kindt, as the children's father, should have more say in their upbringing. They did not believe they would get a fair shake in New Jersey because O'Connor's father was a former county counsel and Froland and Kindt believed he exerted influence on the courts.
On Friday, December 29, Kindt and Aronson abandoned the family minivan at the Newark Airport in an effort to throw the police off their track, while Froland and the children waited for them at Penn Station in Newark. When Kindt and Aronson arrived at Penn Station, they all boarded an Amtrak train for North Carolina. Upon arrival, Kindt cancelled the contract to buy the boat in New Jersey, and instead purchased a thirty-nine-foot boat in North Carolina, the Dorado. Under the John Kaliczak pseudonym, he obtained insurance on the boat. He also purchased over $1600 in groceries and $1500 in boat supplies.
The morning of January 20, 2001, Kindt, Froland, Aronson, J.K., O.K. and S.F. set sail from Oriental, North Carolina. Two days later their boat became disabled. Kindt, Froland and Aronson ...