Shah v. Shah

• Decision Date: 30 June 2005
• Citation: 875 A.2d 931,184 N.J. 125
• Parties: Gayatri SHAH, Plaintiff-Respondent, v. Mayank SHAH, Defendant-Appellant.
• Court: New Jersey Supreme Court

875 A.2d 931

184 N.J. 125

Gayatri SHAH, Plaintiff-Respondent, v. Mayank SHAH, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 2, 2005.

Decided June 30, 2005.

Ronald M. Abramson, Hackensack, argued the cause for appellant (Kleeblatt, Galler, Abramson & Zakim, attorneys; Mr. Abramson and Thomas R. McConnell, on the briefs).

Jane A. Herchenroder, Somerville, argued the cause for respondent.

Mary M. McManus, argued the cause for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President, attorney; Ms. McManus and Mr. Miller, on the brief).

Theresa A. Lyons, submitted a brief on behalf of amicus curiae Partners for Women and Justice (Heer & Lyons, attorneys).

Justice RIVERA-SOTO delivered the opinion of the Court.

In State v. Reyes, 172 N.J. 154, 168-69, 796 A.2d 879 (2002), we addressed "whether a victim of domestic abuse who seeks refuge in this State is entitled to the protections of the [Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33] when the abuser enters the State and commits an act of domestic violence in New Jersey." This appeal requires that we address an issue identified but not confronted in Reyes: the extent of the authority of New Jersey courts to protect a person, who claims to be a victim of domestic violence in another state and seeks refuge in New Jersey, from an alleged abuser who has had no contact with this State. Id. at 169 n. 3, 796 A.2d 879.

We hold that, upon the filing of a complaint by a plaintiff in the Family Part of the Chancery Division of the Superior Court in a county "where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered," N.J.S.A. 2C:25-28a, New Jersey courts have the authority to issue ex parte relief, in the form of a temporary restraining order, upon a showing both that "the plaintiff is in danger of domestic violence," N.J.S.A. 2C:25-28g, and that the temporary restraining order is "necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought." N.J.S.A. 2C:25-28f. If personal jurisdiction cannot be exercised over the defendant within constitutional due process limits, the temporary restraining order may only provide for prohibitory relief, and no final restraining order may issue. In that event, we hold further that, once issued, "[a]n order for emergency, ex parte relief ... shall remain in effect until a judge of the Family Part issues a further order." N.J.S.A. 2C:25-28i.

I.

In 2001, plaintiff Gayatri Shah and defendant Mayank K. Shah married in India. Shortly after the marriage, defendant returned to Illinois, where he is licensed to practice medicine and, almost eighteen months later, plaintiff joined him there. After four months, plaintiff, who was then pregnant, left the marital home in Illinois and sought refuge with family friends in Bergen County where, on August 22, 2003, she filed a complaint against defendant under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33 (Domestic Violence Act). An ex parte temporary restraining order issued on the filing of the complaint. That ex parte temporary restraining order barred defendant from plaintiff's "confidential location" and prohibited defendant from (1) "having any oral, written, personal, electronic or other form of contact" with plaintiff; (2) "making or causing anyone else to make harassing communication to" plaintiff; (3) "talking, following or threatening to harm, to stalk or to follow" plaintiff; and (4) "possessing any and all firearms and other weapons." The order also included two forms of affirmative relief. Defendant was ordered (1) to "immediately surrender [any and all] firearms, weapons, permit(s) to carry, application(s) to purchase firearms and firearms purchaser ID card to the officer serving this Court Order," and was warned that the "[f]ailure to do so will result in your arrest and incarceration;" and (2) to continue medical coverage for plaintiff under defendant's health plan. Plaintiff also requested the "return [of] legal documents and social security card," a prayer for relief that was deferred.

The ex parte temporary restraining order was made returnable for a final hearing on September 4, 2003. Although both plaintiff and her counsel appeared on that date, defendant appeared only through his counsel. The trial court entered an amended temporary restraining order that required that defendant pay plaintiff $500 by September 8, 2003 and further provided that "[a]ll other provisions of the TRO entered on 8/22/03 remain in effect."¹ The amended temporary restraining order was then made returnable on September 23, 2003, on which date the trial court entered a second amended temporary restraining order that provided that "[a]ll other provisions of the TRO entered on 8/22/03 and amended TRO entered on 9/4/03 remain in effect," and further ordered that defendant pay plaintiff "emergent support" of $1,500, to be followed by "an additional $300/wk until final hearing." It also provided that "[d]efendant, through counsel, shall send the following to plaintiff: [p]laintiff's work permit, social security card, all immigration related documents and [p]laintiff's personal mail." The second amended temporary restraining order was made returnable on October 9, 2003. Coincidentally, also on September 23, 2003, while in New Jersey, plaintiff was served with a complaint for divorce filed by defendant in his home state of Illinois.

Defendant commenced a two-tiered attack on the second amended temporary restraining order. First, he filed a notice of appeal challenging the trial court's exercise of both subject matter and personal jurisdiction. Second, defendant, through counsel, moved before the trial court to dismiss the domestic violence complaint for want of both subject matter and personal jurisdiction, see R. 4:6-2(a) and (b), and on forum non conveniens grounds, see generally Kurzke v. Nissan Motor Corp., 164 N.J. 159, 164-66, 752 A.2d 708 (2000),

as well as to stay the final restraining order hearing scheduled for October 9, 2003. Defendant asserted, before both the trial court and the Appellate Division, that because he had no contacts whatsoever with New Jersey, New Jersey's courts could not exercise personal jurisdiction over him. Plaintiff did not challenge defendant's factual assertions concerning the lack of minimum contacts.

By an order dated October 8, 2003, the trial court denied all of defendant's objections, clearing the path for the final restraining order hearing scheduled for the following day. Defendant immediately sought leave to appeal from the denial of his motion to dismiss and, therefore, the trial court adjourned its hearing on the final restraining order until October 20, 2003, continued in effect "[a]ll provisions of the Temporary Restraining Order entered on 8/22/03 [and] amended TRO's of 9/4/03 [and] 9/23/03," and noted that there would be "no further adjournments." On October 20, 2003, defendant sought emergent relief from the Appellate Division. That same day, the Appellate Division granted defendant's motion for leave to appeal, consolidated defendant's appellate applications, and ordered that "[a] stay is granted of any further proceedings in the trial court pending disposition of the appeal or the further order of the court, except that the temporary order remains in effect pending the appeal." In a published opinion, the Appellate Division affirmed in part and reversed in part the second amended temporary restraining order, vacated its stay, and remanded the cause to the Family Part. Shah v. Shah, 373 N.J.Super. 47, 860 A.2d 940 (App.Div.2004). As an overarching proposition, the panel held that the trial court possessed both subject matter and personal jurisdiction to issue the protective or prohibitory portions of the second amended temporary restraining order because "plaintiff, having a lawful presence in New Jersey and residing here, at least for the time being, is entitled to seek and expect the full protection of our laws." Id. at 52, 860 A.2d 940. The panel reasoned that once "a factual basis [to the domestic violence complaint] is found to exist, the court must be seen to have the authority to enter any reasonable order required to protect plaintiff's safety and her personal integrity[,]" concluding that "[t]his State's lack of jurisdiction over defendant's person cannot be seen as a reason for denying or limiting plaintiff in respect of the protections our laws afford to her." Ibid.

The Appellate Division then distinguished between the propriety of issuing protective or prohibitory relief versus affirmative relief, noting that "[i]t is another thing entirely, however, to enter an order that acts upon defendant personally, in the sense of imposing affirmative obligations on him, in the absence of any conduct on his part subjecting himself to the jurisdictional sway of this State." Ibid. The panel grounded that distinction on the principle that "a court is without the power to effect a mandate when it lacks personal jurisdiction over defendant." Id. at 53, 860 A.2d 940. The panel explained that

[t]he portion of the trial court's order that requires defendant to turn over plaintiff's personal papers — her work permit, social security card, immigration documents and mail — has hybrid qualities, however. In the sense that it works to keep plaintiff legally whole and as fully protected by the law as circumstances permit, as distinguished from factually better off, it has some of the same character as the protective order, and is authorized by a sensibly remedial application of the authority conferred in N.J.S.A. 2C:25-29b(12). To the extent such an order acts upon defendant to require him to undertake particular acts, however, it cannot, either as a matter of law or practicality, be specifically enforced in this State.

[Ibid. (citation omitted).]

The panel held ...