L.D.L. v. D.J.L., DOCKET NO. A-5390-17T3
| Decision Date | 12 June 2019 |
| Docket Number | DOCKET NO. A-5390-17T3 |
| Parties | L.D.L., Plaintiff-Respondent, v. D.J.L., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Haas and Susswein.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1837-18.
Villani & De Luca, attorneys for appellant (Benjamin M. Hoffman, on the briefs).
Bronzino Law Firm, LLC, attorneys for respondent (Peter J. Bronzino and Alexander M. Jimenez, on the brief).
Defendant D.J.L. appeals from a June 2018 final restraining order (FRO) entered in favor of plaintiff L.D.L. pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The sole issue raised on appeal is whether the trial court had personal jurisdiction over defendant.
For the reasons that follow, we conclude that the trial court had personal jurisdiction based on two independent circumstances. First, defendant submitted to the jurisdiction of the State of New Jersey by appearing in court, by declining the trial judge's invitation for an adjournment to seek the services of counsel, and by participating fully in the plenary hearing. Second, even if defendant had not appeared in this State, the multiple phone calls he made to plaintiff after she had fled to New Jersey satisfy the "minimum contacts" required to establish personal jurisdiction. Accordingly, we affirm the grant of the FRO.
We derive the following facts from the record. The parties were married in April 2016 and resided in Roanoke County, Virginia. As of May 2018, the parties planned to get a divorce. Plaintiff no longer resided in the marital home and moved to New Jersey to reside with her father. During the month of May,plaintiff often drove from New Jersey back to the marital home in Virginia to collect her belongings.
On May 31, 2018, at about 8:00 a.m., defendant arrived at the marital home just as plaintiff was leaving the residence in her car to return to New Jersey. Defendant attempted to wave plaintiff down, but she drove around him. Defendant got into his car and pursued plaintiff. While stopped at a traffic light, defendant repeatedly bumped the back of plaintiff's car with his car. Defendant got out of his car and started to bang his fists on plaintiff's window while saying "I'm gonna kill you" and "revenge is mine." Once the light turned green, defendant returned to his car and continued his pursuit of plaintiff, following her onto an interstate highway. Plaintiff estimated that defendant followed her for approximately twenty minutes to a half hour and for about fifteen to twenty miles before finally giving up the pursuit.
Defendant later texted plaintiff "Game on," and left a voicemail stating, While plaintiff was in New Jersey, at around 10:30 p.m., plaintiff called defendant at defendant's request. At one point, plaintiff attempted to terminate the telephone conversation by stating, to which defendant replied "I'll see you soon." Plaintiff tolddefendant that he will not see her again and he responded by saying, Plaintiff ceased all communication with defendant, but defendant attempted to contact plaintiff by phone and left several voicemail messages over the course of the next couple of days. Plaintiff testified that she was afraid of defendant due to the history of past abuse and his unpredictability due to his post-traumatic stress disorder.
The next day, plaintiff filed a domestic violence complaint in Ocean County, New Jersey, pursuant to the PDVA. The FRO hearing was held on June 11, 2018, before the Honorable Valter H. Must, P.J.F.P. Both parties appeared pro se and both were advised by Judge Must that they could request an adjournment to afford an opportunity to seek the assistance of counsel. Both parties declined the opportunity to request an adjournment and both indicated that they were prepared to proceed with the FRO hearing.
At the beginning of the hearing, defendant remarked, The judge explained that he could not give legal advice and again told defendant that he would be willing to adjourn the matter to give defendant an opportunity to obtain or consult with legal counsel. Defendant did not requestan adjournment and stated that he was aware of the ramifications should a FRO be entered against him. The court continued with the hearing.
At the conclusion of the hearing, the court found that jurisdiction was proper in New Jersey because plaintiff had fled from Virginia. See N.J.S.A. 2C:25-28(a). The court also found that defendant had submitted to the personal jurisdiction of the State of New Jersey by appearing in court. With regard to the substance of the plenary hearing, the court found plaintiff's testimony to be more credible than defendant's testimony. The court concluded that plaintiff had not established by a preponderance of the evidence that defendant had committed the alleged predicate act of criminal mischief. The court did find, however, that plaintiff had proven by a preponderance of the evidence that defendant had made a terroristic threat under N.J.S.A. 2C:12-2, and had committed harassment in violation of N.J.S.A. 2C:33-4. The court also found that plaintiff was in need of the protection of a restraining order to protect her from immediate danger and further abuse, whereupon the court entered the FRO.
Defendant on appeal does not contest the trial court's factual findings. Nor does defendant contest that the court had subject matter jurisdiction over thedomestic violence incident. The sole issue raised in this appeal is whether the court had personal jurisdiction over defendant.
To address that issue, we first consider the legal principles governing this appeal, including the standard of review that we apply. The question as to whether a court has personal jurisdiction over a party is a question of law, and thus the standard of review is de novo. YA Global Investments., LP v. Cliff, 419 N.J. Super. 1, 8 (App. Div. 2011). Defendant did not formally raise the issue of personal jurisdiction prior to or during the FRO hearing.1 As such, we apply the plain error standard to determine whether the trial court's exercise of jurisdiction and ensuing issuance of the FRO was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
The judgment of a court lacking personal jurisdiction violates the Due Process Clause of the Fourteenth Amendment. Pennoyer v. Neff, 95 U.S. 714(1877). However, a state court's assertion of personal jurisdiction does not violate due process if the defendant has "certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (quoting Miliken v. Meyer, 311 U.S. 457, 463 (1940)); A.R. v. M.R., 351 N.J. Super. 512, 519 (App. Div. 2002). "The 'minimum contacts' requirement is satisfied so long as the contacts resulted from the defendant's purposeful conduct and not the unilateral activities of the plaintiff." Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)). The evaluation of whether a defendant has the requisite minimum contacts with New Jersey is done on a case-by-case basis. Shah v. Shah, 184 N.J. 125, 138 (2005).
Unlike subject matter jurisdiction, personal jurisdiction can be waived. Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982) (); see YA Global Investments, 419 N.J. Super. at 9 (). Furthermore,and of particular importance in this case, an individual can submit to the jurisdiction of the court by appearing before the court and failing to raise the defense of lack of jurisdiction. Ins. Corp. of Ir., 456 U.S. at 703-04; see McDonald v. Mabee, 243 U.S. 90, 91 (1917).
In J.N. v. D.S., 300 N.J. Super. 647 (Ch. Div. 1996), the defendant sought to dismiss the complaint for lack of both subject matter and personal jurisdiction. The court explained:
We next apply these legal principles to the particular circumstances of this case. Although defendant was not compelled to answer the complaint in New Jersey, he drove from Virginia to New Jersey, appeared in court, repeatedly declined the opportunity to seek counsel, confirmed that he understood the ramifications of the...
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