October 1, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-401-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 15, 2010
Before Judges Cuff and Fasciale.
In this domestic violence case, M.N. appeals the entry of a final restraining order (FRO) obtained by A.M., his former girlfriend. Even though M.N. ended their relationship one and one-half years before a September 2009 incident, the trial judge failed to analyze whether a dating relationship existed within the meaning of the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Because no jurisdiction exists, we reverse.
A.M. and her boyfriend, P.D., contended that M.N. made derogatory comments about her in September 2009. They testified that defendant yelled a derogatory comment at her from a moving vehicle when they were across the street from his house. A.M. also argued that the next day M.N. made more harassing comments. A.M. testified that four phone messages she recorded demonstrate she was harassed; however, none of the phone calls were made by M.N. or from his phone, and the record contains no transcription of the phone calls. She claimed that in one of the calls she heard M.N. in the background making a derogatory comment about her. Our ability to review the relevancy of what was said has been hampered, however, because no record exists of the calls.
A.M., M.N. and P.D. testified at the trial. A.M. admitted that she had "no idea why[,] out of the blue[,] this started." To support his position that A.M. and P.D. initiated contact with him, M.N. produced "My Space" messages he received from P.D. M.N. was not provided with any discovery, particularly police reports, even though the trial judge and A.M. possessed them, and the judge used a police report to question A.M.
The judge concluded that jurisdiction existed because "the parties were formerly in approximately a three-month dating relationship." He found M.N. guilty of harassment for making derogatory comments about A.M. and entered the FRO.
M.N. argues on appeal that the trial court erred in finding jurisdiction, that any comments he made did not constitute harassment, and that the Act is unconstitutional because it does not provide him with the right to counsel.*fn1
It is undisputed that M.N. ended the three-month dating relationship eighteen months before the incident. During that time, there was virtually no contact between the parties. There is no evidence that they resided together or had an intimate relationship. They did not work together, attend the same school, belong to the same social or religious organizations, or otherwise have any continued connection after M.N. terminated the relationship. About nine months before the incident, they saw each other unexpectedly at a restaurant when M.N. entered as A.M. exited. The encounter was uneventful and neither spoke to the other.
While the Act is remedial in nature and should be liberally construed to achieve its express purpose "[T]o assure the victims of domestic violence the maximum protection from abuse the law can provide," N.J.S.A. 2C:25-18, the judge must first analyze whether jurisdiction exists. That was not done.
In Tribuzio v. Roder, 356 N.J. Super. 590, 596 (App. Div. 2003), we described how to evaluate the protection afforded under the Act to "'[A] person with whom the victim has had a dating relationship.'" (quoting N.J.S.A. 2C:25-19(d)). We explained that:
The passage of time from the end of the dating relationship is only one factor to be considered in determining the availability of the Act's protection. The extent and nature of any intervening contacts as well as the nature of the precipitating incident must also be considered. No mathematical formula governs the outcome. A qualitative analysis is required, weighing and balancing the nature and duration of the prior relationship, the duration of the hiatus since the end of that relationship, the nature and extent of any intervening contacts, the nature of the precipitating event, and any other appropriate factors.
The ultimate issue is whether, in light of these factors, the victim was, at the time of the precipitating event, subjected to potential abusive and controlling behavior related to and arising out of the past domestic relationship. If so, the victim is in need of and entitled to the special protection provided by the Act. [Id. at 597.]
To determine whether jurisdiction existed in a case involving a former relationship, the court in Coleman v. Romano, 388 N.J. Super. 342, 351-52 (Ch. Div. 2006) undertook a qualitative analysis by considering the following six factors:
(1) the nature and duration of the prior relationship;
(2) whether the past domestic relationship provides a special opportunity for abuse and controlling behavior;
(3) the passage of time since the end of the relationship;
(4) the extent and nature of any intervening contacts;
(5) the nature of the precipitating incident; and
(6) the likelihood of ongoing contact or relationship.
None of these factors were considered by the judge. The relationship was short-lived, eighteen months passed between the end of the relationship and the incident, and there were virtually no intervening contacts. The facts do not demonstrate a likelihood of ongoing contact between the parties.
Here, the record fails to demonstrate whether A.M. was subjected to "potential abusive and controlling behavior related to and arising out of the past domestic relationship." From the record developed in the trial court, we conclude as a matter of law that the dating relationship contemplated by the Act did not exist in this case. Although A.M. may not obtain the remedies afforded by the Act, she is not without recourse. She could have filed charges of harassment against M.N. in the municipal court.