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State v. Froland

December 12, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STACEY FROLAND A/K/A STACEY KINDT, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 378 N.J. Super. 20 (2005).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

At issue in this appeal is whether a stepmother who removes her stepchildren from the state with the consent of their father (her husband), but without the consent of their mother, is guilty of non-consent kidnapping under N.J.S.A. 2C:13-1.

In 1985, John Kindt married Anne O'Connor. The couple adopted two children, J.K. and O.K. In November 1996, while living in California, Kindt and O'Connor separated. O'Connor moved back to her family in New Jersey, taking the two children with her. Kindt and O'Connor later divorced, and the New Jersey divorce decree afforded them joint custody, with O'Connor as the parent of primary residence.

Kindt married Stacey Froland-Kindt, (Froland) in 2000. Shortly thereafter, they moved to Brick, New Jersey, where they lived with Froland's infant daughter, S.F., and Kindt's nephew, Matthew Aronson. After the move to New Jersey, O'Connor agreed to a shared physical custody scheme. Under the scheme, the children stayed with Kindt until seven o'clock in the evening on Tuesdays and Thursdays, and spent every other weekend with him. This schedule was followed for approximately six months. The situation between the parents deteriorated, however, when Kindt began to keep the children overnight instead of returning them to O'Connor at the required hours.

In December 2000, O'Connor obtained a court order prohibiting Kindt from interfering with the custody of the children after seven p.m. on Tuesdays, Thursdays, and every other Sunday. The order also enforced a prior judgment that required Kindt to pay O'Connor $100,000 in equitable distribution by December 31, 2000.

O'Connor had custody of the children during the Christmas holidays in 2000, but agreed that Kindt could have the Children from Wednesday, December 27, through the morning of Saturday, December 30. O'Connor dropped the children off at Kindt's house on December 27. On Friday, December 29, she called to talk to the children, but Kindt's phone had been disconnected. That evening, O'Connor drove to Kindt's house and found that no one was home. The following day, she returned to the house and again found it deserted. O'Connor filed a missing children's report and the Wall Township Police Department began an investigation.

The investigation ultimately revealed that Kindt and Froland had devised a plan to remove J.K. and O.K. from New Jersey without O'Connor's consent. They took many steps in preparation for the departure. They obtained birth certificates for the children and copies of their medical records. Froland withdrew a large amount of money from her two bank accounts and filled out a change-of-address form to have the family's mail forwarded to Buffalo, New York. Kindt flew to North Carolina in mid-December where, using a pseudonym, he bought a boat. Froland and Kindt also sent letters to their parents acknowledging they were going to take the children away.

On December 29, Kindt, Froland, Aronson, and the children traveled to Newark Airport and then, in an attempt to cover their trail, took public transportation to North Carolina. During that time, warrants were issued for the arrest of Kindt and Froland. On January 22, 2001, the Coast Guard received a distress signal from a disabled boat off the coast of North Carolina. Aboard the vessel, the Coast guard found Kindt, Froland, Aronson and the children. Investigators recovered evidence demonstrating Kindt and Froland's intent to disappear with the children.

Kindt, Froland and Aronson were indicted on charges of first-degree kidnapping, interference with custody, and conspiracy. The cases were severed, with Froland's trial proceeding first. At trial, the judge instructed the jurors that the removal of the children was unlawful if it was accomplished without the consent of O'Connor even if Kindt, the children's father, had consented. The jury found Froland guilty of first-degree kidnapping, among other charges, and the trial judge sentenced Froland to an aggregate custodial term of seven years.

Before his case came to trial, Kindt's motion to dismiss the kidnapping charges was granted. The trial judge determined that the plain language of the kidnapping statute prohibited the State from prosecuting Kindt for the crime of kidnapping his own children. The State sought leave to appeal. After consolidating the appeals, the Appellate Division affirmed Froland's conviction and reversed the order dismissing the kidnapping charges against Kindt. This Court granted Kindt's petition for certification.

HELD: A person who acts with the permission of a parent is not guilty of non-consent kidnapping unless the person uses force, threat or deception.

1. The kidnapping statute interdicts the "unlawful" removal or confinement of another for a specific purpose -- in this case, to permanently deprive a parent, guardian or other lawful custodian of custody of the victim. N.J.S.A. 2C:13-1(b)(4). "Unlawful" is defined as a removal accomplished by "force, threat or deception," or, in the case of a person under the age of 14, "without the consent of a parent, guardian or other person responsible for general supervision of his welfare." N.J.S.A. 2C:13-1(d). Because no claim of force, threat or deception was presented to the jury, Froland's conviction can only stand if she removed the children "without the consent of a parent." Froland's essential argument is that, because she had the consent of Kindt, who is "a parent," her conviction must be overturned. Facially, that argument is persuasive. The word "parent" has a well-established meaning in common parlance -- a father or mother related to a child genetically or by adoption. The State counters that Froland's reliance on the common meaning of the word "parent" is too simplistic because it fails to take into account the details of judicial custody orders that affect parental issues. (pp. 9-13)

2. The Court agrees with Froland that the term "parent" in the kidnapping statute should be given its plain and ordinary meaning. The Legislature could have qualified the word "parent" based upon judicially decreed custodial status. Its use of the term "parent having the right of custody" in the affirmative defense portion of the statute, N.J.S.A. 2C:13-1(f), shows that it understood how to impose conditions on the word "parent." The Court reads the plain language of the statute as empowering Kindt to consent to his children's removal and as concomitantly immunizing Froland from a kidnapping conviction based on that consent. (pp. 13-15)

3. The conduct that Kindt and Froland engaged in is not immune from punishment. If the removal had been accomplished by force, threat or deception, a kidnapping conviction could be sustained against a parent and his accomplice. Froland's behavior falls squarely within the strictures of the interference with custody statute. N.J.S.A. 2C:13-4. Although the Appellate Division viewed kidnapping and interference with custody as overlapping criminal provisions, the statutes were not intended to overlap but were designed to address entirely distinct conduct. The legislative history of the statutes supports the Court's conclusion. In 1968, the Legislature formed a Criminal Law Revision Commission to revise the penal laws. The Commission adopted the approach of the American Law Institute's Model Penal Code (MPC). In commenting on the definition of "unlawful," the drafters of the MPC stated that one purpose of the language was to discourage use of the kidnapping offense to enforce custody decrees. The Commission followed the MPC and recommended a separate interference with custody statute. By its very terms, that statute, adopted in 1978, addresses the parent's effort to deprive the other parent of custody or parenting time. Interference with custody is a serious offense (second degree in certain cases) with heavy penalties. The clear legislative history supports the conclusion that the kidnapping and interference with custody statutes address different evils. (pp. 15-21)

The judgment of the Appellate division is REVERSED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the view that for the reasons set forth in the Appellate Division's opinion, the kidnapping statute applies to those instances where a parent, even one with joint custody, secretly steals the children with the purpose and effect of taking them without the other custodial parent's consent.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE and HOENS join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion. JUSTICE ALBIN did not participate.

The opinion of the court was delivered by: Justice Long

Argued September 10, 2007

At issue in this appeal is whether a stepmother who removes her stepchildren from the state with the consent of their father (her husband), but without the consent of their mother, is guilty of non-consent kidnapping under N.J.S.A. 2C:13-1. The Appellate Division upheld the stepmother's kidnapping conviction under the circumstances described above. We granted certification and now reverse. Although subject to a charge of kidnapping by "force, threat or deception" under N.J.S.A. 2C:13-1(d), and to a charge of interference with custody under N.J.S.A. 2C:13-4(a), a party who acts with the permission of a parent is not guilty of non-consent kidnapping. Because the State did not pursue force, threat or deception kidnapping in this case, the stepmother's conviction cannot stand.

I.

In 1985, John Kindt married Anne O'Connor. The couple adopted two children, J.K. and O.K. In November 1996, while living in California, Kindt and O'Connor separated; O'Connor moved back to her family in New Jersey, taking J.K. and O.K. with her. The parties later divorced. The New Jersey decree afforded them joint custody*fn1 of the children with O'Connor as the parent of primary residence, and Kindt as the parent of alternative residence. The judgment also provided that Kindt would have "reasonable and liberal parenting time" whenever he was in New Jersey, and that the children's holiday and vacation time would be divided in a "reasonable and fair fashion." In the event that Kindt and O'Connor ever lived "in the relative vicinity of each other," the children would live with both "on a schedule to be agreed upon by the parties." Regular visitation between Kindt and the children took place.

In April 2000, Kindt married Stacey Froland-Kindt ("Froland"). Two months later, the couple moved to Brick, New Jersey, where they rented a single-family house in which they lived with Froland's infant daughter, S.F., and Kindt's nineteen-year-old nephew, Matthew Aronson.

After Kindt moved to New Jersey, he and O'Connor agreed on a shared physical custody scheme.*fn2 The children stayed with Kindt until seven o'clock in the evening on Tuesdays and Thursdays, and spent every other weekend with him. Kindt and O'Connor followed that schedule for about six months. The situation between the parents apparently deteriorated in November 2000, when Kindt began to keep the children overnight instead of returning them to O'Connor at the required hour.

In December 2000, O'Connor obtained a court order prohibiting Kindt from interfering with the custody of the children after seven p.m. on Tuesdays, Thursdays, and every other Sunday. If Kindt failed to comply, the order would be deemed a directive to any law enforcement officer to aid O'Connor in retrieving the children. The order also enforced a prior judgment that required Kindt to pay O'Connor $100,000 in equitable distribution by December 31, 2000. Failing payment by that date, Kindt would be subject to an application for a bench warrant.

O'Connor had custody of the children during the Christmas holidays in 2000. She agreed, however, that Kindt would have the children from Wednesday, December 27, through the morning of Saturday, December 30. On December 27, O'Connor dropped the children off at Kindt's house. On Friday, December 29, she called to talk to the children, but Kindt's phone had been disconnected. That evening, O'Connor drove to Kindt's house and found that no one was home. The following day, she returned to the house and again found it to be deserted. O'Connor then filed a missing children's report. On December 31, 2000, the Wall Township Police Department began an investigation.

The investigation ultimately revealed that Kindt and Froland had devised a plan to remove J.K. and O.K. from New Jersey without O'Connor's consent. They obtained birth certificates for the children and themselves along with copies of the children's medical records. During the month of December, Froland withdrew a large amount of money from her two bank accounts and filled out a change-of-address form to have the family's mail forwarded to Buffalo, New York. Around mid-December, Kindt flew to North Carolina where, using a pseudonym, he bought a boat.

During the last week of December 2000, Kindt and Froland finalized their plan. On December 26, Froland created a "to do" list on her computer that included, among other things, cutting the phone lines and ceasing communications with relatives. On December 27, Froland typed a letter to her mother stating, in part, that she and Kindt intended to "establish possession of the children, create a new status quo, and remove [themselves] to somewhere far enough away" so that O'Connor's father, who was a former county counsel of Monmouth County, would not be able to "taint the judicial process."

On December 28, Kindt sent a letter to his parents acknowledging that he was going to take the children away. On December 29, Froland prepared a letter to Kindt's mother providing her with detailed instructions about what to do with the family's possessions and ...


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