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E.C v. P.C

December 9, 2011

E.C., PLAINTIFF-RESPONDENT,
v.
P.C., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-212-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2011

Before Judges Yannotti, Espinosa and Kennedy.

Defendant appeals from an order entered by the Family Part on January 27, 2011 in this matrimonial action, which enforced an order entered by the court on September 30, 2010 in a related domestic violence case and ordered defendant to vacate the marital residence within a specified period of time. We affirm.

The parties were married in 1996, and they have three children, who were born in 1996, 1998 and 2002, respectively. In December 2009, defendant filed a complaint against plaintiff pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35 (the DV action). On January 19, 2010, the trial court entered a final restraining order (FRO) against plaintiff. Among other things, the FRO granted defendant exclusive possession of the marital residence.

On January 27, 2010, the Division of Youth and Family Services (Division), received a report that defendant had physically abused one of the children. The Division found that the report of physical abuse was not substantiated; however, the Division was informed that defendant had been abusing alcohol. According to the Division, the children expressed concerns about remaining in the home with defendant and said that they would feel safer if they resided with plaintiff.

On January 28, 2010, the Division effected an emergency removal of the children from the home and placed them in plaintiff's care. The Division then filed a verified complaint in the trial court seeking an order granting it responsibility for the care and supervision of the children and transferring custody of the children to plaintiff. On February 2, 2010, the court granted the Division's application and entered an order placing the children in plaintiff's custody.

Thereafter, the children moved in with plaintiff and his friend. On April 1, 2010, plaintiff filed a notice of appeal from the FRO entered in the DV action. In June 2010, we dismissed plaintiff's appeal for failure to prosecute. In July 2010, plaintiff filed a motion seeking to reinstate the appeal.

On July 30, 2010, plaintiff filed a motion in the DV action seeking an order: 1) modifying the FRO to grant him possession of the marital home so that he could reside there with the children, 2) requiring defendant to pay the mortgage, insurance and utility bills for the home, and 3) directing defendant to pay child support. The motion was returnable on September 30, 2010.

On September 16, 2010, plaintiff filed the complaint in this matrimonial action. The following day, we granted plaintiff's motion to reinstate his appeal from the FRO. The appeal was subsequently dismissed. On the morning of September 30, 2010, defendant filed a voluntary petition in bankruptcy in the United States Bankruptcy Court.

Later in the day on September 30, 2010, the trial court entered an order in the DV action, which: 1) granted plaintiff's request to modify the FRO; 2) required defendant to vacate the marital home within twenty-one days; 3) required plaintiff to continue paying all utility bills, mortgage payments and expenses of the household; and 4) directed defendant to pay child support.

Thereafter, defendant filed a motion to dismiss the divorce action due to various claimed deficiencies in the form and service of the complaint. Plaintiff filed a cross-motion seeking, among other relief, ...


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