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D.A.C v. M.M.L

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2012

D.A.C., PLAINTIFF-RESPONDENT,
v.
M.M.L., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-0788-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012

Before Judges Carchman and Nugent.

Defendant M.M.L. appeals from a final restraining order (FRO) entered by the Family Part pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Among its other provisions, the FRO barred defendant from plaintiff D.A.C's residence. Defendant does not challenge the merits of the entry of the FRO; he challenges that portion of the order that bars him from the property that he alleges he owns exclusive of plaintiff. We conclude that the FRO was properly entered and affirm.

We need not recite the facts giving rise to the entry of the FRO. We are satisfied that the findings of the trial judge were based on credible evidence in the record and support the entry of the order. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

The parties are not married but are the parents of three minor children who reside with the parties. After the resolution of the issues related to the allegation of domestic violence, both the judge and the parties engaged in a colloquy regarding temporary support as well as the obligations of the parties to maintain the residence for plaintiff and the children. Defendant objected, noting that he owned the property. He argued that he could not afford to maintain the property and continue paying the mortgage and other related expenses.

In ordering support for both plaintiff and the children, the judge recognized that his order was temporary and that further proceedings would ensue to resolve the financial relationship of the parties, including, presumably, the status of the parties' residence.*fn1 In addition to ordering exclusive possession of the premises to plaintiff, the judge said:

What I'm trying to do is set up an interim [o]rder until we get this on -- if there's going to be a breakup of the marriage or whatever. If there's going to be an FD matter, then we can bring financials in so I can figure what we have.

What I'm trying to figure is . . . it's 800 and some dollars a month you make -- is what you're going to need to keep things afloat.

So I'm going to order him to pay $200 a week. And that's going to be net. That's not counted as alimony. It's temporary child support and marital expense allotment paid through Probation.

And then I'll have to wait -- I mean, if you think it's too much, you'll submit a motion and I'll make a determination. As we have noted, the thrust of plaintiff's argument is that as the owner of the property, defendant could not be excluded from entry to the property. Defendant's argument is without merit as the Act specifically addresses the issue. N.J.S.A. 2C:25-29 provides that, among other things, a judge may issue an order granting the following relief:

(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties . . . . This order shall not in any manner affect title or interest to any real property held by either party or both jointly.

[N.J.S.A. 2C:25-29b(2).]

Despite defendant's arguments to the contrary, the statute is dispositive. Moreover, concerns that defendant may have regarding his financial ability to maintain the property can be addressed by appropriate motion either in the domestic violence proceeding or in the non-dissolution proceeding anticipated by the judge. At this point, we find no basis for our intervention.

Affirmed.


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