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In re Return of Weapons to Meseroll

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 9, 2008

IN THE MATTER OF THE RETURN OF WEAPONS TO BERTRAM D. MESEROLL, JR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FO-10-100-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 26, 2008

Before Judges Lisa and Simonelli.

Appellant, Bertram D. Meseroll, Jr., appeals from denial of his motion pursuant to Rule 4:50-1, which sought relief from a Family Part order forfeiting weapons appellant owned and revoking his firearms purchaser identification card (FPIC). Appellant consented to the order. However, in support of his motion for relief from the order, he contended he "was not informed" that the order would cause him to "permanently" lose his right to obtain an FPIC. He argues on appeal that the trial court erred in denying his motion. We disagree with appellant and affirm.

On April 6, 2006, appellant's wife obtained a temporary restraining order (TRO) against appellant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. In her complaint, appellant's wife alleged that appellant pointed at her "and stated that he should just shoot her between the eyes." His wife further alleged that when she said she would call the police, appellant "responded that I would not be able to call the police because I would be dead." The TRO prohibited appellant from possessing weapons and ordered the seizure of his weapons and FPIC. The police seized numerous weapons appellant owned and his FPIC.

On April 20, 2006, appellant and his wife appeared in court in the domestic violence action. Appellant's wife voluntarily sought to dismiss the TRO and not proceed. An order was entered on that date dismissing the domestic violence action. In the colloquy in court, appellant's wife stated she had no objection to the return of appellant's weapons to him and was no longer in fear of him.

However, on July 17, 2006, appellant's wife sought and obtained another TRO against appellant under the Prevention of Domestic Violence Act. The complaint alleged that appellant physically assaulted his wife, was ordered to leave, but returned. The TRO again prohibited appellant from possessing weapons or an FPIC, and noted that his weapons and FPIC had been seized in connection with the previous TRO. The new TRO was also dismissed at the request of appellant's wife, as evidenced by an order of July 20, 2006. We have not been furnished with a transcript of any court proceeding connected with that dismissal.

The Hunterdon County Prosecutor petitioned for forfeiture of the seized weapons and revocation of appellant's FPIC pursuant to N.J.S.A. 2C:25-21d(3). We have not been furnished with a copy of the petition, but presumably it spelled out the relief sought in the manner we have described. We make this presumption because the order ultimately entered contained language consistent with the terms of that statute.

The forfeiture matter came before the court on July 27, 2006. Appellant was represented by counsel. At the commencement of the proceeding, the judge said, "I understand the matter has been resolved and I'm signing an order that's been marked up, is that correct?" Appellant's counsel responded, "That is correct, Judge." Appellant was sworn in, and the judge addressed him, beginning with a reading from the proposed consent order. The judge read that "among other things it says, you've agreed to forfeit the above listed weapons and the ID card to the State and pursuant to statute." The judge asked whether appellant had any questions, to which he responded in the negative. The judge asked, "Is this a voluntary act on your part?" Appellant answered in the affirmative. Appellant also stated he was satisfied with his attorney's representation. He also expressed his understanding that he did not have to agree to the terms of the order but by doing so waived his right to a hearing.

The order was entered on August 14, 2006. It is entitled "ORDER TO FORFEIT WEAPONS AND REVOKE ID CARD." It recites that appellant "agrees to forfeit the above-listed weapons and ID Card to the State of New Jersey," and it orders that appellant's "New Jersey Firearms Purchaser ID Card be REVOKED."

N.J.S.A. 2C:58-3c(8) provides that no FPIC shall be issued to any person whose firearm is seized pursuant to the Prevention of Domestic Violence Act and whose firearm has not been returned. And, correspondingly, N.J.S.A. 2C:39-7b(3) makes it a third-degree crime for a person whose firearm is seized pursuant to the Prevention of Domestic Violence Act and whose firearm has not been returned to purchase, own or possess a firearm.

Appellant apparently wished to seek a new FPIC, and because of the statutory disqualification we have just cited, was not eligible. He filed a motion pursuant to Rule 4:50-1 seeking relief from the order of August 14, 2006. We have not been furnished with a copy of the motion, so we do not know the specific relief sought. However, there is no dispute that the motion was filed less than one year after the August 14, 2006 order, and we have been furnished with appellant's supporting certification dated April 20, 2007 and filed April 30, 2007, in which he stated, "I was not informed that this action would cause me to permanently lose my New Jersey firearms rights, and that it would make me a 'certain person not to possess firearms,' under N.J.S. 2C:39-7b(3)."

The trial judge concluded that appellant failed to make a sufficient showing for relief. The judge emphasized that appellant was represented by counsel in the forfeiture proceeding, and that the disposition reached by settlement was entitled to repose. The judge further noted this is a civil matter, and it was not the judicial role to inquire as to every detailed bit of advice given to a litigant by the litigant's attorney. The record provided sufficient information to demonstrate that appellant understood the proceeding and voluntarily consented to the disposition achieved.

Appellant argues that relief from the forfeiture order should have been granted under Rule 4:50-1(e) or (f).

Subsection (e) allows for relief when "the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application." Subsection (f) allows relief for "any other reason justifying relief from the operation of the judgment or order."

Appellant's argument under subsection (e) is that because the TRO pursuant to which his weapons and FPIC were initially seized was ultimately dismissed, the purpose for the order was "satisfied" or "otherwise vacated." Essentially, he argues that because the domestic violence proceeding was over, and he was no longer subject to a domestic violence restraining order, the predicate for the forfeiture order no longer existed. We do not agree.

The structure of the Prevention of Domestic Violence Act and the corresponding provisions of Title 2C dealing with firearms, do not contemplate return of firearms and FPICs to individuals merely because the domestic violence proceeding is concluded. See M.S. v. Millburn Police Dep't, 395 N.J. Super. 638, 642 (App. Div.) (the disqualification under N.J.S.A. 2C:58-3c(8) survives vacation of a domestic violence restraining order), certif. granted, 193 N.J. 223 (2007); State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004) (the voluntary dismissal of a domestic violence complaint does not mandate the automatic return of firearms seized in connection with that proceeding). The prosecutor retains an independent right to seek forfeiture if the prosecutor deems it appropriate. If the affected person wishes to contest the proposed forfeiture, he or she is entitled to a hearing, N.J.S.A. 2C:25-21d(3), for a determination as to whether he poses a threat to the public in general or to anyone in particular. Appellant waived the hearing in this case, and agreed to forfeiture of his weapons and revocation of his FPIC.

This brings us to appellant's argument under subsection (f), the so-called catch-all provision of Rule 4:50-1. He argues that he should be given an opportunity to "cure" the disqualification, and that Rule 4:50-1 is the means by which he should be permitted to do so. Essentially, he contends he is entitled to such relief because his consent to the forfeiture order was not made knowingly and voluntarily. He does not deny that he fully understood and voluntarily agreed to forfeit his weapons and to forfeit his FPIC. His contention is narrowly limited to an asserted lack of understanding that the forfeiture of his FPIC was permanent in nature. As we have stated, the order provided that the FPIC was "revoked," which of course connotes a permanent deprivation. And, appellant's asserted understanding that the forfeiture of his FPIC was only temporary and he could always obtain a new one would render the statute meaningless.

Trial judges are granted broad discretion in deciding motions pursuant to Rule 4:50-1, and, except for relief from default judgments (which should be liberally considered), relief should be granted under this rule only sparingly. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994). We will not disturb a trial judge's determination unless it results from a clear abuse of discretion. Id. at 283. Under subsection (f) an applicant for relief must demonstrate "truly exceptional circumstances," which must be evaluated on a case-by-case basis. Id. at 286.

Applying these principles, we find no mistaken exercise of discretion in this case. The trial judge relied upon the fact that appellant was represented by counsel and expressed his voluntary assent under oath to the judge's approval of the settlement, which included the revocation of appellant's FPIC. In that colloquy, appellant expressly acknowledged his understanding that not only his weapons but his FPIC would be forfeited, and that by agreeing to those terms, he was waiving his right to a hearing. In light of this evidence, we find no mistaken exercise of discretion in the trial judge's determination that appellant's bald assertion that he was not informed of the permanent nature of the revocation of his FPIC was insufficient to warrant relief from the forfeiture order.

Affirmed.

20080909

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