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J.D.G. v. R.P.G.

Superior Court of New Jersey, Appellate Division

June 24, 2013

J.D.G., Plaintiff-Respondent,
R.P.G., Defendant-Appellant.


Submitted April 23, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0293-12.

R.P.G., appellant pro se.

J.D.G., respondent pro se, has not filed a brief.

Before Judges Lihotz and Ostrer.


Defendant R.P.G. appeals from a final restraining order, entered pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant contends the Family Part judge erred in relying on allegations plaintiff J.D.G. had previously included when she filed a Pennsylvania protection from abuse (PFA) petition, which was dismissed with prejudice. We disagree and affirm substantially for the reasons expressed by Judge Thomas C. Miller.

Plaintiff and defendant were married and residing in Stroudsburg, Pennsylvania. They have three teenage children. On August 18, 2011, plaintiff filed a petition for PFA in the Court of Common Pleas, Monroe County, Pennsylvania. Plaintiff alleged defendant's conduct the prior evening equated to a sexual assault and maintained relief was necessary because "an immediate and present danger of further abuse from the [d]efendant" was presented.

Following ex parte review of plaintiff's petition, a temporary order was entered restraining defendant from committing further acts of abuse along with other relief. The final hearing was scheduled for August 22, 2011. On that date, defendant represented by counsel appeared, as did plaintiff's counsel. However, plaintiff did not. Consequently, the judge dismissed the petition with prejudice.

On September 13, 2011, plaintiff filed a complaint seeking relief pursuant to the PDVA in the Family Part, Somerset County. A temporary restraining order (TRO) was entered based on plaintiff's allegations of defendant's conduct on August 12, 13, 14, and 18, 2011, which she characterized as "sexual assault" and "harassment." A TRO was entered.

On September 19, 2011, after defendant was served with the initial TRO, plaintiff and her attorney appeared before the court, ex parte, requesting to amend the complaint. Specifically, she sought to add defendant's alleged abusive sexual conduct of August 17, 2011, as a basis for relief, and to include prior acts of domestic violence by defendant occurring in the summer of 2007, July 2008, and July 2011. The Family Part judge considered plaintiff's testimony, granted her request, and entered an amended TRO. The final hearing remained as originally scheduled on September 22, 2011.

The parties appeared on the scheduled hearing date and trial commenced. Plaintiff testified, relating the incidents she alleged presented the need for the entry of a final restraining order (FRO). Although she did not provide a time period, she stated the parties had had marital difficulties, but remained in the same home. In fact, plaintiff was involved with another, H.M. Plaintiff, accompanied by H.M., met with defendant to discuss separation and divorce. Defendant offered two choices: H.M. could move in and she, along with plaintiff, could sleep with him, or, for six months, he would look for work and plaintiff would have to provide sex on demand. At the end on the six-month period, he would move out, leaving the children in plaintiff's care and transfer title of the house to plaintiff. Plaintiff, fearing she would lose her children if she left, agreed to the latter arrangement. Later that evening, on two separate occasions, defendant ordered plaintiff to the bedroom for intercourse.

On August 17, plaintiff arrived home from work and noticed defendant had been drinking. As she attempted to prepare dinner, he held money in his hand and ordered her to the bedroom. She complied. He said "here's $300 for food shopping. Here's [$]100 for [each child] for school." He ordered plaintiff to perform fellatio. She complied "in order to fulfill the deal, " but not because she wanted to. The following morning plaintiff told defendant she was leaving to visit her parents. He demanded she engage in sex; she declined and called 911. Defendant ordered plaintiff to leave the home, stating "I knew you couldn't hold up your end of the deal . . . . Then if you are not going to have sex with me then get the hell out of this house. Pack your shit up and get out. The kids aren't going anywhere."

The police arrived. After speaking with plaintiff, defendant, and the three children, plaintiff was permitted to leave with the two younger children, and the oldest decided to remain in the home with defendant.

Plaintiff explained she left Pennsylvania on August 18, 2011, to live with her family in New Jersey, because she was afraid "of being in her own house and being sexually abused." She admits she did not return to attend the PFA hearing in Pennsylvania, and understood her petition had been dismissed.

After plaintiff rested, defendant offered copies of the PFA petition and the order dismissing that matter with prejudice, suggesting plaintiff misled the court when she failed to disclose a prior related proceeding. He also believed the plaintiff was precluded, in the present proceeding, from relying on the conduct alleged in the prior dismissed Pennsylvania proceeding. He requested a continuance to secure counsel to advance these legal arguments. Over plaintiff's objection, the trial judge granted an adjournment.

The hearing continued for three additional days spread over the ensuing three months. Although initially self-represented, defendant retained counsel who appeared for the second and third days of trial, but was thereafter relieved by defendant. Briefs addressing defendant's challenges to the Family Part's jurisdiction and the applicability of res judicata and judicial estoppel had been filed on behalf of each party.

After limited testimony, the judge determined New Jersey had personal jurisdiction over defendant based on his minimum contacts with the state. With regard to the preclusive effect of the Pennsylvania order dismissing plaintiff's PFA petition, the judge ordered the transcript from that proceeding be produced. He continued the TRO and adjourned the matter.

Following receipt of the transcript from the August 22, 2011 Pennsylvania proceeding, and limited testimony regarding procedures from defendant's Pennsylvania counsel, the judge concluded the PFA petition was dismissed with prejudice because plaintiff failed to appear and not because the court considered the merits of her allegations. He rejected defendant's motion to dismiss plaintiff's complaint.

Cross-examination of the plaintiff resumed. Plaintiff admitted she had been in defendant's company several times between her departure from Pennsylvania and the filing of her PDVA complaint. At the time, the children were in Pennsylvania and often plaintiff's contacts related to her children's care.

Defendant also testified. He admitted he and plaintiff orally agreed to end their marriage, and he set forth terms to limit the children's contact with H.M.; however, the discussions did not include provision of sexual favors. Defendant testified he "supposed that [their] sexual relationship would continue moving forward" until plaintiff left the residence. He insisted all sexual interactions were consensual. He also suggested plaintiff's conduct was calculated to serve as a basis for a PFA order that would remove him from his home and allow her "to pursue her lesbian lifestyle."

Judge Miller issued his oral opinion on March 15, 2012. The parties appeared self-represented. Judge Miller reviewed his interim rulings, confirming the court had personal and subject matter jurisdiction. Further, he concluded the dismissed Pennsylvania action was not an adjudication on the merits, therefore plaintiff was not equitably barred from relying on the facts undergirding the Pennsylvania case to support her New Jersey request for an FRO.

Noting he was the first to hear and evaluate the testimonial version of the August 2011 interactions between the parties, Judge Miller rejected the motive ascribed to plaintiff by defendant, noting jurisdiction is limited solely to entry of an FRO prohibiting further contact and prevention of future domestic violence between the parties, so there was no advantage to plaintiff in the matrimonial litigation.

Judge Miller made detailed credibility determinations. He found plaintiff "appeared . . . to be scared to death. She appeared to be in fear. She's afraid to look at . . . defendant. I can tell by the look on her face that she is in fear." He stated she was "passive, unemotional, laconic, submissive and blank. . . . It is clear from her body language and her testimony that she [was] afraid of defendant." Having watched both parties over several days, Judge Miller "believed that [plaintiff] was telling . . . the truth[, ] . . . that she's credible[, ] . . . candid[, ] . . . [and] forthright in her testimony."

The judge also observed defendant's manner. Simultaneously, he characterized defendant as showing "a smirk[, ] or a smile or a smugness . . . while [plaintiff] was testifying." He also found defendant "intimidating." "He has got a way about him that is imposing and the court gets the clear impression that that is purposeful[, ]" as defendant was found to have glared at the plaintiff and the court throughout the proceeding. Further, the judge found defendant "combative." He was found to be "easily angered" and "appeared to be angry and he appeared to be attempting to intimidate."

Judge Miller determined plaintiff proved defendant engaged in harassment over the several-day period in mid-August 2011, and that an FRO is needed to protect her from immediate danger and to prevent further abuse. He found plaintiff "clearly . . . needs protection and she is clearly in fear of the defendant and deserves the protection." An FRO was entered on March 15, 2012. Defendant appealed.

The "standard of review of a trial court's factual findings and conclusions of law is well-settled." L.M.F. v. J.A.F., Jr., 421 N.J.Super. 523, 533 (App. Div. 2011). "'[A] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S.Ct. 7, 168 L.Ed.2d 784 (2007). "We will not disturb the 'factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" L.M.F., supra, 421 N.J.Super. at 533 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We are not bound by a "trial court's interpretations of the law and the legal consequences that flow from established facts[, ]" which are "not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Initially, defendant maintains plaintiff's action should have been dismissed based on the Pennsylvania order dismissing her initial PFA complaint with prejudice. This contention is unfounded.

Our law includes common law doctrines to prevent the "'relitigation of claims or issues that have already been adjudicated.'" Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007) (quoting Velasquez v. Franz, 123 N.J. 498, 505 (1991)). The doctrine of res judicata "provides that a cause of action between parties that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding." Velasquez, supra, 123 N.J. at 505 (citation omitted). "By insulating courts from the relitigation of claims, res judicata prevents the judicial inefficiency inherent in multiplicitous litigation[, ]" ensures the finality of judgments, and advances the interest of fairness "[b]y preventing harassment of parties[.]" Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 409 (1991) (citations omitted). Further, the doctrine fosters "the important policy goals of 'finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness[.]'" First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)).

For an action to be barred based on the application of res judicata "there must be (1) a final judgment by a court of competent jurisdiction, (2) identity of issues, (3) identity of parties, and (4) identity of the cause of action." Brookshire Equities, LLC v. Montaquiza, 346 N.J.Super. 310, 318 (App. Div.) (citations omitted), certif. denied, 172 N.J. 179 (2002). "[A] consent judgment has the same res judicata effect as any other judgment." Joseph L. Muscarelle, Inc. v. State, by Transp. Dep't, 175 N.J.Super. 384, 395 (App. Div.) (citations omitted), certif. granted, 85 N.J. 484 (1980), appeal dismissed, 87 N.J. 321 (1981). Further, "[t]he preclusive effect of res judicata applies not only to matters which were raised in a prior action but also to matters which could have been raised." Ibid. (citation omitted).

In this matter, Judge Miller properly determined there had been no adjudication of the merits of plaintiff's request for protection; her petition was dismissed because she failed to appear. We concur with the conclusion that giving preclusive effect to the Pennsylvania order, under these circumstances, would run counter to the public policy of this State as well as the protective purposes of the PDVA, which is designed "'to assure victims of domestic violence the maximum protection from abuse the law can provide. Because it is remedial in nature, the Legislature directed that the [PDVA should] be liberally construed to achieve its salutary purposes.'" Shah v. Shah, 184 N.J. 125, 133 (2005) (quoting State v. Reyes, 172 N.J. 154, 160-61 (2002) (internal quotation marks and citations omitted)).

Moreover, we reject defendant's contention plaintiff's action was filed in bad faith. On the contrary, the detailed, express, credibility findings provided by Judge Miller paint a clear portrait of the cowering, submissive, fearful plaintiff in need of legal protection from future abuse at the hands of the intimidating, angry, imposing defendant.

Related to this point, there is no evidence to support defendant's claim plaintiff "falsified" the PFA complaint or the amended complaint. Defendant's contortion of the court's comments made during the September 19, 2011 hearing were fully aired and rejected by Judge Miller. His determination in this regard will not be disturbed.

The remaining arguments advanced by defendant relating his interpretation of the Federal Rules of Civil Procedure, his understanding of the effects of an involuntary dismissal of an action pursuant to Rule 4:37-2, the applicability of full faith and credit to sister state judgments, and claims of bias because he is a male and because Somerset County found him guilty "to recoup the monies from the State for their Domestic Violence Program[]" lack sufficient merit to warrant further discussion in our opinion R 2:11-3(e)(1)(E).

Following our review we conclude Judge Miller's findings were supported by the evidence in this record as we defer to the judge's factual and credibility findings based on his opportunity to see hear and evaluate the witnesses' conflicting testimony N.J. Div. of Youth & Family Servs. v. R.L. 388 N.J.Super. 81 88 (App Div 2006) certif denied 190 N.J. 257 (2007) Plaintiff properly proved by a preponderance of the credible evidence a predicate act of domestic violence occurred and there was a danger of future acts of domestic violence if a restraint was not entered Silver v. Silver 387 N.J.Super. 112 125-28 (App Div 2006)


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