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M.A. v. E.A.

November 17, 2006

M.A., PLAINTIFF-APPELLANT,
v.
E.A., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-192-06.

The opinion of the court was delivered by: Sabatino, J.S.C. (temporarily assigned).

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 5, 2006

Before Judges A. A. Rodríguez, Collester and Sabatino.

Plaintiff M.A. appeals the Family Part's August 3, 2005 order dismissing her domestic violence complaint against her husband, defendant E.A. Plaintiff sought restraints after her fifteen-year-old daughter by another marriage reported that defendant had sexually abused her two nights earlier, and that he had been doing so for several years. Although we affirm the Family Part's holding that defendant's teenage stepdaughter is not a "victim" within the statutory definition of N.J.S.A. 2C:25-19(d) and that the mother lacks standing to assert claims on her child's behalf under the Prevention of Domestic Violence Act ("Domestic Violence Act"), N.J.S.A. 2C:25-17 to 35, we remand for further proceedings to enable the record to be amplified concerning acts of domestic violence that defendant may have committed against plaintiff individually, acts which were partially described in plaintiff's testimony before the trial court curtailed it.

Plaintiff, who testified at trial through a Polish interpreter, was born in Poland and moved to the United States at the age of twenty-three. In December 1989, plaintiff gave birth to a daughter ("M.P.") with her first husband. After that marriage ended, plaintiff met defendant in July of 1996, and began living with him two months later. The parties had a son in 1997 and were married in 2001. M.P. continued to reside with them and her half-brother.

The record indicates that in December 2001 defendant was arrested by the Linden police based on allegations that he had assaulted plaintiff. As recounted by plaintiff in her testimony in this case, the parties had an argument which caused defendant to start "beating [her] up." M.P. called the police and plaintiff, who had "a terrible headache," was taken to the hospital. Plaintiff recalled that she procured a restraining order against defendant at that time, although no such order was supplied in the record. In any event, the parties thereafter resumed cohabitating.

Plaintiff also recounted at trial that defendant "would occasionally batter [her] [and] beat [her] up," and that he "would kick [her] [and] push [her]," but not to an extent that would cause her to call the police. She illustrated this by describing an incident when defendant struck her in the face while the two of them were in the car by Home Depot. Although the blow was painful and caused plaintiff to walk home alone, it did not result in any physical injuries.

Plaintiff also described that she had observed defendant under the influence of alcohol "whenever [they] had parties at home," and "sometimes . . . saw him coming back from work [on] Saturdays drunk." She also noted that his driver's license had once been suspended for an alcohol-related offense.

The present matter was brought to the police's attention on July 22, 2005, when the police came to the parties' Linden residence in response to a report that defendant had sexually assaulted M.P. on multiple occasions, most recently two days earlier on July 20 in her mother's bedroom. The allegations included vaginal intercourse and fellatio, which M.P. contended had been occurring with defendant since she was age eight or nine. The police interviewed M.P. at the home and then arranged for the assistance of a sexual assault nurse examiner, a rape crisis worker, and the Division of Youth and Family Services. The police also interviewed plaintiff, who advised them that she had been unaware of the sexual assaults until her daughter had reported them to her earlier that day. The record indicates that plaintiff worked in the evening hours and thus would have been away from the residence when the alleged sexual acts occurred.

Following the police investigation, defendant was arrested and charged with aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(2)(c). On July 26, 2005, defendant posted bail and was released from jail. Although it was not documented to the Family Part judge, the bail conditions were presumed to contain the customary restriction on any contact between defendant and his stepdaughter.

On the same day that defendant posted bail, plaintiff filed, apparently with the aid of an interpreter, a complaint in the Linden Municipal Court seeking a Temporary Restraining Order ("TRO") against defendant under the ...


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