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State v. D.G.M.

Superior Court of New Jersey, Appellate Division

March 20, 2015

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
D.G.M., Defendant-Appellant

Argued: December 9, 2014.

Approved for Publication March 20, 2015.

Page 979

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FO-10-000135-13.

Peter D. Espey argued the cause for appellant ( Hardin Kundla McKeon & Poletto, PA, attorneys; Mr. Espey, on the brief).

Jeffrey L. Weinstein, Assistant Prosecutor argued the cause for respondent ( Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Mr. Weinstein, of counsel and on the brief).

Before Judges FISHER, ACCURSO[1] and MANAHAN. The opinion of the court was delivered by FISHER, P.J.A.D.

Page 980

[439 N.J.Super. 632] OPINION

[439 N.J.Super. 633] FISHER, P.J.A.D.

In this appeal of a contempt conviction, we consider whether defendant violated the " no contact or communication" provision of an amended final restraining order (FRO) -- obtained by J.R. (Joan, a fictitious name), pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35 -- by sitting near and briefly filming Joan at their six-year-old son's soccer game. Although such conduct falls within the FRO's prohibition on " communication," we conclude that defendant could not have fairly anticipated this result. In applying the doctrine of lenity, we reverse.

I

The record reveals that in 2006 Joan and defendant had a short romantic relationship which produced one child and a good deal of subsequent rancor. In 2010, Joan commenced a domestic violence action and obtained an FRO, which was later amended on a few occasions for child-related reasons. For example, an amended FRO entered in 2012 directed that defendant and Joan would communicate only by " the on-line family wizard system or [defendant's] father's cell phone." This amended FRO -- in effect on the date in question -- did not otherwise alter the standard provision in the original FRO that " prohibited" defendant " from having any (oral, written, personal, electronic or other) form of contact or communication with" Joan, as well as other individuals not relevant here.[2]

As noted, the parties have a child and both are involved in the child's life. The Supreme Court has recognized the right " to raise one's children [is an] essential, basic civil right[] . . . far more precious . . . than property rights." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972) (internal citations and quotation marks omitted). This fundamental right, [439 N.J.Super. 634] however, may be limited and when defendant committed an act of domestic violence in 2010, a Family judge properly limited defendant's ability to communicate or contact the child's mother by entering an FRO. That consequence has generated further conflict, as evidenced by the proceedings leading to subsequent amendments to the FRO. And those amendments have chafed further, as revealed by the circumstances leading to this contempt prosecution.

The record reveals that defendant appeared at the child's soccer game on November 17, 2012. The FRO then in effect did not prohibit his attendance but it did prohibit defendant from having " any . . . contact or communication" with Joan, who also attended the game. Based on the allegation that defendant violated the FRO " by sitting directly next to" Joan during the soccer game and " us[ing] a cellular phone ...


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