July 2, 2007
SHARON R. DOE, PLAINTIFF-RESPONDENT,
VINCENT T. BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-350-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2007
Before Judges Kestin and Lefelt.
This is a domestic violence jurisdictional dispute between plaintiff, Sharon Doe, and defendant, Vincent Brown, who were married in 1998 and divorced in Florida in 2003, where defendant still lives. Defendant appeals from a New Jersey final domestic violence order entered in favor of plaintiff, who had moved to New Jersey, and argues that this State lacked jurisdiction to enter the final order against him, the trial court failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act, and plaintiff failed to prove her case against defendant. We affirm.
The facts may be briefly summarized. Besides divorcing the parties, the Florida divorce judgment awarded plaintiff primary residential custody of the parties' minor child, Nina, and awarded defendant secondary residential responsibility and unsupervised visitation. Unfortunately, after the parties divorced, an abuse dispute erupted between them involving the alleged improper conduct of defendant with his child. After plaintiff precluded defendant from visiting with Nina, he asserted in Florida that she should be held in contempt of the Florida order for interfering with the custody and visitation provisions of the judgment. Shortly thereafter, plaintiff, who had moved to New Jersey, began domestic violence proceedings against defendant in this State based upon three telephone calls that were made to her cell phone in New Jersey.
Defendant appeared at the final hearing by telephone to contest the assertion of jurisdiction by New Jersey. After Judge Holden denied defendant's application seeking to have the matter referred back to Florida, defendant participated in the domestic violence hearing. He not only testified, denying all charges against him, but his lawyer also cross-examined plaintiff.
Judge Holden found that plaintiff's domestic violence claim was based upon three terroristic threats made from a Pennsylvania pay phone to plaintiff's cell phone in New Jersey. The judge found that the first caller "basically said . . . you better let Vincent --- I'm calling for Vincent. You better let him see the child." According to the judge, the second call "said I don't want to have to call you again. You're going to be dead. . . the baby will be out of the country." The judge further found that the third call "threatened that the grandparents would never see the child." The judge characterized the calls as "vile," "menacing phone calls."
Judge Holden explained that "how could some person walking down the street with some extra change in their pocket using a pay phone find out" about defendant's visitation problems with his daughter. The only way, according to the judge, was through defendant.
In addition, the judge detailed some prior acts of "physical altercations," including an incident where defendant admits he "pinned" plaintiff "down on the bed." The judge further remarked about a "history of foul language in the presence of their daughter and menacing behavior." Accordingly, the court, by a preponderance of the evidence, found that plaintiff had established a terroristic threat sufficient to activate the court's domestic violence jurisdiction and entered a final restraining order against defendant.
The final order prohibited defendant from having any contact or communication with plaintiff, her mother, and Nina. Revealingly, the order specifically noted that plaintiff had sought temporary custody, but that relief was not granted. No provision for visitation was included within the order.
Defendant is in the military, and stationed in Cocoa Beach, Florida at Patrick Air Force Base. He has never been in New Jersey and claims the court lacked jurisdiction over him and thereby could not issue a final restraining order. He relies on Shah v. Shah, 184 N.J. 125, 139 (2005), which held that when a defendant has "zero contacts with the State of New Jersey" our courts "lack the power to enter an order requiring the performance of any affirmative act by a defendant over whom in personam jurisdiction cannot be asserted." The Court specifically held "that when personal jurisdiction over a defendant is lacking, New Jersey courts do not have the power to enter a final restraining order against that defendant." Id. at 140.
We reject this argument because Shah is not controlling. Instead, we find State v. Reyes, 172 N.J. 154 (2002), more instructive. That case allowed a final restraining order to be entered against a non-resident because the victim had fled to New Jersey seeking shelter from abuse that occurred out-of-state and "an [additional] act of domestic violence [that] did occur in New Jersey, thus conferring jurisdiction on our courts." Id. at 157.
In Reyes, the defendant pursued the victim to New Jersey and harassed her in this State. Here, defendant's terroristic threat by phone was completed in this State and the offense was therefore committed here. "[A] person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if: (1) [e]ither the conduct which is an element of the offense or the result which is such an element occurs within this State." N.J.S.A. 2C:1-3 (emphasis added).
In State v. Halleran, 181 N.J. Super. 542 (App. Div. 1981), defendant argued that the offense "was committed in Colts Neck where the [anonymous harassing telephone] calls originated and not Freehold where the calls were received." Id. at 545. We held that the calls could be prosecuted in Freehold even though they were made from Colts Neck. Id. at 548. Similarly, in this case, defendant's threat was, in effect, made in New Jersey and enabled this State to exercise personal jurisdiction over him, especially to protect the victim and child.
In any event, even if Shah applied, we note that no affirmative relief was accorded plaintiff. The court made no attempt "to exercise its coercive power to compel action by a defendant." Shah, supra, 184 N.J. at 138. The only actions taken by Judge Holden were to protect this State's residents from violence being perpetrated against them in this State.
On November 7, 2006, about three months after Judge Holden entered the domestic violence order at issue herein, a Florida judge in the pending contempt proceeding noted that order and asserted "exclusive jurisdiction over this matter pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act . . . to determine child custody issues between the parties regarding this minor child." The domestic violence order entered by Judge Holden, however, did not challenge Florida's jurisdiction over the custody/visitation dispute, but merely took the minimum actions necessary to protect our residents. No custody or visitation determinations were made in New Jersey.
In any event, the Florida order indicated that a hearing would be held within three months "concerning [plaintiff's] allegation of sexual abuse perpetrated by the [defendant] upon the parties' minor child." Significantly, the order specified that this hearing would be conducted "prior to any visitation between the [defendant] and the parties' minor child." Accordingly, both orders were in harmony and we discern no conflict with the Uniform Child Custody Jurisdiction and Enforcement Act. N.J.S.A. 2A:34-54 (defining "child custody determination" as "providing for the legal custody, physical custody or visitation with respect to a child.").
Finally, we reject defendant's burden of proof arguments as lacking in sufficient merit to warrant discussion in this decision. R. 2:11-3(e)(1)(E). We add that plaintiff's cell phone evidence was not hearsay, as the evidence was not offered to establish the truth of the matter stated, only that the calls were made. N.J.R.E. 801(c). The calls were in essence offensive acts themselves that became terroristic threats because of plaintiff's reaction, regardless of whether the statements were true. In conclusion, we note only that there was more than adequate evidence supporting Judge Holden's findings and conclusions. Consequently, we are bound by these determinations. State v. Locurto, 157 N.J. 463, 470-71 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
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