Torres v. Lancellotti

• Decision Date: 21 April 1992
• Citation: 257 N.J.Super. 126,607 A.2d 1375
• Parties: Deborah TORRES, Plaintiff, v. Carl LANCELLOTTI, Defendant.
• Court: New Jersey Superior Court

Page 126

257 N.J.Super. 126

607 A.2d 1375

Deborah TORRES, Plaintiff, v. Carl LANCELLOTTI, Defendant.

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

Decided April 21, 1992.

Deborah Torres, pro se.

Carl Lancellotti, pro se.

HEALY, J.S.C.

On March 27, 1992, the plaintiff, Deborah Torres, filed a domestic violence complaint against her live-in boyfriend of eight years, the defendant Carl Lancellotti. In the complaint, plaintiff alleged that the defendant had choked, kicked, punched and bitten her about the face and body. She further alleged that the defendant had in the past, assaulted and threatened her. There was no history of prior domestic violence between the parties. Plaintiff requested that the defendant be barred from future acts of domestic violence and from making harassing communications to plaintiff and her brother. She also requested that certain personal property be returned to her.

On the same day, the Union City Municipal Court entered a temporary restraining order (TRO) granting plaintiff's requested relief, and setting the return date for the final hearing for April 7, 1992 at 8:30 a.m. On April 7, the defendant requested legal counsel and the hearing was adjourned with a new date of April 21, 1992. On that date, both plaintiff and defendant appeared without legal representation.

At the final hearing the plaintiff repeated the allegations of her complaint and added that defendant continues to harass her. She asked that the court continue the restraints contained in the TRO and in addition requested that the court order the return of certain furniture and appliances to her. Defendant denied the allegations of domestic violence and asserted that the TRO should be vacated and the complaint dismissed on the grounds that plaintiff and defendant had, on one occasion, engaged in sexual relations after the entry of the TRO. Defendant argued that the conduct of the parties had vitiated the temporary restraining order and therefore the court could not enter a final order.

Established case law holds that the reconciliation of parties, separated by court order under the Prevention of Domestic Violence Act of 1990, (The Act) L. 1991 c. 261, "acts as a de facto vacation of the order." Hayes v. Hayes, 251 N.J.Super. 160, 167, 597 A.2d 567 (Ch.Div.1991); see also Mohamed v. Mohamed, 232 N.J.Super. 474, 477, 557 A.2d 696 (App.Div.1989). Moreover, it is the common practice of the courts to vacate a domestic violence order when there is a mutual violation of the order. Nonetheless, this court holds that the present mutual violation does not result in the automatic vacation of the TRO, and continues the relief therein to the final order.

Prior to the recent revision of the Prevention of Domestic Violence Act, de facto vacations of domestic violence orders premised upon a reconciliation or mutual violation, were justified by the fact that "relief under the Prevention of Domestic Violence Act, was emergent in nature, intended to afford speedy assistance. If the parties do not reconcile, the more orderly procedures should be employed for the resolution of long range support and custody matters." Mohamed, 232 N.J.Super. at 476, 557 A.2d 696; see also Mugan v. Mugan, 231 N.J.Super. 31, 33, 555 A.2d 2 (App.Div.1989).

While this court has no dispute with the notion that more orderly and formal relief should be sought where appropriate, it also recognizes that the new Prevention of Domestic Violence Act of 1990 has an expanded coverage and effect. In fact, the Prevention of Domestic Violence Act of 1990 states at section 2 (to be codified at N.J.S.A. 2C:25-18),

it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil sanctions.... Prevention of Domestic Violence Act of 1990, L. 1991 c. 261 s. 2 (Emphasis added.)

Moreover, in many cases (e.g., unmarried cohabitants without children) the relief awarded pursuant to a domestic violence complaint is the most formal and final relief available to the parties.

It is true that the Act still provides an important emergent function, however, it is also now apparent that a court adjudicating pursuant to the Act is, in addition, to provide final long-term relief in appropriate cases. That being the case, it would be unwise and improper to automatically vacate an order issued on a domestic violence complaint upon a reconciliation or mutual violation without further analysis.

Assistance in determining the proper analysis to be employed in such a case can be found by looking to the analogous situation of reconciliation during the next prior 18 months to a no-fault divorce. N.J.S.A. 2A:34-2 provides that a cause of action lies for divorce if "the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation...." N.J.S.A. 2A:34-2 d. The statute "contains no requirement that the time period involved immediately precedes the filing of the complaint." Brittner v. Brittner, 124 N.J.Super. 259, 261, 306 A.2d 83 (Ch.Div.1973). "[T]he statute creates a presumption of law that, after an 18-month period of separation, there is no reasonable prospect of reconciliation." Dunston v. Dunston, 124 N.J.Super. 214, 215, 305 A.2d 813 (Ch.Div.1973). "Such a presumption disappears upon the introduction of substantial evidence by way of contradiction." Id. at 215, 305 A.2d 813. Thus, should the 18-month separation pass without incident, only to be followed by a reconciliation, the presumption would fall and no cause for divorce would appear. This convoluted legal analysis has evolved throughout the case law in order to further the statute's underlying purpose of terminating dead marriages. Brittner, 124 N.J.Super. at 261, 306 A.2d 83.

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