Croswell v. Shenouda

• Decision Date: 06 May 1994
• Citation: 646 A.2d 1140,275 N.J.Super. 614
• Parties: Lianna CROSWELL, Plaintiff, v. Tarik SHENOUDA, Defendant.
• Court: New Jersey Superior Court

Page 614

275 N.J.Super. 614

646 A.2d 1140

Lianna CROSWELL, Plaintiff, v. Tarik SHENOUDA, Defendant.

Superior Court of New Jersey, Chancery Division Family Part, Hudson County.

May 6, 1994.

Claudette L. St. Romain, Jersey City, for plaintiff (Timothy K. Madden, Director, Hudson County Legal Services Corp., attorney).

Anthony P. Peduto, Jersey City, for defendant.

JOSE L. FUENTES, J.S.C.

This case has come before the court on the return date of a temporary restraining order issued pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33 (hereinafter, "the Act"). It raises a number of issues arising under that provision of the Act which defines who will be entitled to its protections. Specifically, the court must decide whether plaintiff is a "victim of domestic violence" pursuant to the Act where: (1) the parties have never been married; (2) they have never resided together; (3) plaintiff terminated the only pregnancy of which defendant admits paternity, and (4) defendant denies paternity of the child who plaintiff claims they now have in common. This matter also requires the court to decide if it has the authority to continue a temporary restraining order until a fact which will determine the existence or nonexistence of subject matter jurisdiction is established. Further, it must determine whether or not a defendant is entitled to a trial by jury as to the question of paternity, when that issue is raised within proceedings brought pursuant to the Act.

PROCEDURAL HISTORY

On April 7, 1994, plaintiff filed a domestic violence complaint against defendant, alleging that he had committed acts of terroristic threats and harassment against her. She asserted that she and defendant have a child in common, and on that jurisdictional basis, and based on defendant's alleged acts against her, she received a domestic violence temporary restraining order against defendant. On April 22, 1994, the return date of the temporary restraining order, plaintiff testified to acts committed by defendant which I found rose to the level of harassment pursuant to N.J.S.A. 2C:33-4, and criminal mischief pursuant to N.J.S.A. 2C:17-3. Defendant chose not to testify, so that plaintiff's assertions as to the acts of domestic violence were undisputed. In fact, defendant, through counsel, asserted that he would consent to the entry of the restraints. However, it was then revealed that defendant denied paternity of the child. Because that was the jurisdictional basis upon which the complaint was taken and the temporary restraints issued, the court raised the issue of lack of subject matter jurisdiction sua sponte, since:

The principle is well established that a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits.... Such jurisdiction must be granted to the court by the Constitution or by valid legislation, as it "cannot be vested by agreement of the parties."

[Peper v. Princeton University Board of Trustees, 77 N.J. 55, 65-66, 389 A.2d 465 (1978) (citations omitted).]

The court scheduled a plenary hearing which was held on May 6, 1994, for the sole purpose of taking testimony regarding the jurisdictional issue, i.e. the nature of the relationship of the parties. The temporary restraining order was amended to continue its protections until the date of the hearing.

FACTS

The following facts are undisputed. Plaintiff and defendant met and began a romantic relationship in 1990. Sometime in January of 1992 plaintiff realized that she was pregnant with defendant's child. She decided to terminate that pregnancy and in fact did so sometime in January of 1992. In the summer of 1992 plaintiff again became pregnant. This time she decided to bring the pregnancy to term, and the child was born on April 12, 1993. The parties have never been married and at no time have they resided together.

Plaintiff asserts that she and defendant continued sexual relations until approximately February of 1993, when she was seven months pregnant with the child she eventually gave birth to in April. In fact, plaintiff avers that defendant is the only man with whom she was having sexual relations throughout the summer of 1992, when the child was conceived. Plaintiff claims that defendant supported her decision to terminate her first pregnancy in January of 1992, to the extent that he accompanied her to the health clinic for the procedure. Plaintiff further testified that defendant has always held the child out to be his, by referring to her as his child and by making various small purchases of food, toys, and clothing in the way of support. In addition, plaintiff claims that she and defendant shared a common hotel room during a trip to Alabama in March of 1993.

Defendant testified that he had strenuous religious objections to plaintiff's decision to terminate her first pregnancy, and as a result ceased sexual relations with plaintiff in January of 1992. This would of course preclude the possibility of defendant being the father of plaintiff's child. Defendant further denies sharing a hotel room with plaintiff in Alabama, and any claims that he ever held plaintiff's child out to be his.

ISSUES OF LAW

Plaintiff argues that under any version of the above facts, she qualifies as a "victim of domestic violence" pursuant to N.J.S.A. 2C:25-19(d). That section provides that:

"Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member, or a person with whom the victim has a child in common.

Plaintiff prefaces her arguments by citing case law ¹ to support the proposition that this section of the Act should be given a liberal construction by the courts, pursuant to the Legislature's express intent to protect "victims of violence that occurs in a family or family-like setting." N.J.S.A. 2C:25-18. Plaintiff's arguments can be segregated into three separate claims of jurisdiction. First, she contends that her prior pregnancy to which defendant admits paternity qualifies her under a liberal interpretation of the "has a child in common" clause. Second, plaintiff asks this court to find that she and defendant are "former household members," in the sense that they have conducted their relationship in a "family or family-like setting." Third, and in the alternative, the plaintiff petitions this court to further amend the temporary restraints; order the defendant to submit to blood or genetic paternity testing pursuant to N.J.S.A. 9:17-51(a); make a paternity determination based on the test results and the evidence adduced at the plenary hearing; and issue the final restraining order if and when that paternity determination names defendant as father of the child born in April of 1993.

I. DOES PLAINTIFF'S PRIOR TERMINATED PREGNANCY OF WHICH DEFENDANT ADMITS PATERNITY QUALIFY HER AS HAVING A CHILD IN COMMON WITH DEFENDANT?

An individual is protected under the Act if he or she "has been subjected to domestic violence by a ... person with whom the victim has a child in common." N.J.S.A. 2C:25-19d (emphasis added). The courts are instructed by the legislature in N.J.S.A. 1:1-1 that:

In the construction of the laws and statutes of this state, ... words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. (Emphasis added.)

Furthermore, a "legislature is presumed to know the rules of grammar." State v. DeMarco, 174 N.J.Super. 411, 416 A.2d 949 (Law Div.1980). Therefore, when the Legislature used the present tense of the verb "to have", one can glean that it meant to protect those persons who currently have a child in common with the perpetrator of the violence. This would be the usual and generally accepted meaning of "has", and there is nothing in the statute itself or in the legislative findings and declarations to indicate that another meaning was intended. Therefore, even if this court were prepared to find that plaintiff's prior pregnancy meant that she had a child in common with defendant in the past, such a finding would still not qualify her as a "victim of domestic violence" as defined in the Act.

Moreover, even if plaintiff were currently pregnant, this court would not be willing to hold, without clear evidence of such an intent, that by using the word "child" the legislature intended to include a pregnancy. First of all, fetuses are not treated as equivalent to a human being in any aspect of the law in New Jersey, unless such treatment is specifically directed by the Legislature. For example, criminal homicide is defined in N.J.S.A. 2C:11-2 to be the causing of the death of another "human being" with the requisite mental state. The courts have construed this definition to exclude fetuses, ² and the Legislature has acquiesced in this construction. ^{3 3} Also, in defining "child" in the statute on Administration of Estates, N.J.S.A. 3B:1-1, the Legislature failed to include the unborn. Rather, separate provision was made for "after born heirs" in N.J.S.A. 3B:5-8. These examples indicate that the Legislature does not mean fetuses when it refers to "children", and when it wants to include fetuses it does so specifically and unambiguously. At least one other court, construing a domestic violence statute with relevant language identical to that in our Act, found that a pregnancy in common was not a relationship covered by the statute. In Woodin v. Rasmussen, 455 N.W.2d 535 (Minn.Ct.App.1990), the court was faced with a plaintiff suing under the Minnesota Domestic Abuse Act, Minn.Stat....