R.D. V. T.H. A-0005-10T4 June 14, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0005-10T4

R.D., Plaintiff-Respondent, v. T.H., Defendant-Appellant.

Submitted April 12, 2011 - Decided June 14, 2011

Before Judges Payne and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-000106-11.

Richard R. Mazzei, attorney for appellant.

Secare, Ryan & Hensel, attorneys for respondent (Guy P. Ryan, on the brief).

PER CURIAM

Defendant T.H. appeals from a domestic violence final restraining order (FRO) based upon harassment, entered against him and in favor of plaintiff R.D., his former girlfriend. For the reasons that follow, we affirm.

The record reveals that on July 9, 2010, defendant filed a complaint for domestic violence, alleging that plaintiff had attempted to hit him with her truck. On July 13, 2010, plaintiff filed a complaint for domestic violence against defendant concerning the same incident.

Plaintiff, who delivers mail for the U.S. Postal Service, alleged that while she was driving the mail truck on July 9, 2010, defendant stepped directly in front of her truck, pointing to a piece of paper in his hand. Further, the complaint alleged that on July 8, 2010, defendant blocked her vehicle when she was exiting a street. When she drove around him, he screamed at her. Additionally, plaintiff’s complaint alleged that on July 7, 2010, while she was delivering the mail, defendant followed her around the neighborhood. When she came away from a home where she had left mail, he was parked in the middle of the street, and he screamed at her. In the complaint plaintiff stated that she just wanted defendant to leave her alone so that they could both get on with their lives.

In addition, plaintiff alleged a prior history of domestic violence. She asserted that defendant always seemed to be wherever she was delivering the mail. She certified that in the past he had threatened to slit her throat and to kill her and any one she was dating. Plaintiff claimed that at various times defendant had verbally abused her, hit her, pinched her, and thrown things at her. She also asserted in the complaint that defendant had sent a letter to her work place accusing her of tampering with the mail.

At the trial of both domestic violence complaints on August 3, 2010, defendant informed the trial court judge that he wanted to dismiss his complaint against plaintiff. Defendant testified that he had never been in fear of plaintiff, but he filed for a restraining order because he felt that the police pressured him to do so. After questioning defendant as to his understanding of the consequences of dismissing the complaint, the judge determined defendant's decision was voluntary and permitted the dismissal.

Defendant also testified that he was not going to contest plaintiff’s complaint and that he wanted to "plead guilty." He acknowledged that he had read plaintiff’s complaint and it was "one hundred per cent correct." Defendant, who worked as a truck driver for a municipal public works department, explained that during the July 9, 2010, incident he had intentionally blocked the road with his truck to get plaintiff’s attention. He admitted that he had been following plaintiff around without her permission while she was working. He averred that he did not want to hurt her, but he wanted to be friends. He did not recall making threats to plaintiff but he believed her statements that he did. He acknowledged that, when he was angry, he might have threatened to kill plaintiff and anyone she was dating, but he never meant to hurt her.

After defendant’s testimony, plaintiff testified. She stated that for about four years she and defendant had been in a relationship, which ended in April 2010. They had been living together until he moved out as a result of a temporary restraining order plaintiff obtained in May 2010.

In reference to the incident on July 9, 2010, plaintiff related that she had been driving on a dead end dirt road delivering mail. Defendant, who was on the road in his work truck, jumped out of his vehicle, waving a piece of paper. She drove around him, then called her boss as she had been instructed to do. Plaintiff stated that she had made the post office management aware of the problems she had been having with defendant. Plaintiff asserted that defendant’s behavior was an ongoing problem, which made her afraid. She felt like he was "stalking" her as she had seen him following her almost every day.

Plaintiff also testified about prior domestic violence. She gave as examples incidents that occurred in April and May 2010. When plaintiff broke up with defendant and asked him to move out of the apartment, defendant yelled, screamed, and threw things. Additionally, in June 2010, defendant wrote a letter to her postmaster, which plaintiff contended was an attempt to get her fired. After hearing plaintiff’s testimony, defendant agreed with it completely, stating: "Everything she said is true." He also apologized to plaintiff and her family.

The trial judge found that defendant had admitted the material allegations in the complaint, including following plaintiff without permission, contacting her employer to get her fired, threatening to kill her, and yelling and throwing things in anger. The judge found that the uncontested evidence proved that defendant had engaged in a course of annoying and alarming conduct that constituted harassment under N.J.S.A. 2C:33-4(c). Noting that, despite defendant's present contrite attitude, his actions were a matter of concern, the judge issued the FRO. This appeal followed.

Defendant makes the following contentions for our consideration:

I. The Trial Court erred in considering any evidence of alleged domestic violence prior to the Order of dismissal of June 14, 2010, as any such evidence is barred by Double Jeopardy underU.S.C.A. Const. (sic) amend. V.

II. The Trial Court erred in considering any evidence of alleged domestic violence prior to the Order of dismissal of June 14, 2010, as any such evidence is barred by Double Jeopardy under N.J. Const. Art. I, ¶ 11.

III. The Trial Court erred in considering any evidence of alleged domestic violence prior to the Order of dismissal of June 14, 2010, as any such evidence is barred under N.J.S.A. 2C:1-9.

IV. Under the principle of Res Judicata, the Trial Court erred iN considering any evidence of alleged domestic violence which had been decided in earlier proceedings.

V. Under the principle of Collateral Estoppel, the Trial Court erred in considering any evidence of allegeD domestic violence which had been decided adversely to the Respondent in prior proceedings.

VI. The Appellant's Due Process rights were violated by the Trial Court considering alleged acts of domestic violence not alleged in the Complaint.

VII. The Trial Court's findings that the Appellant committed an act of Domestic Violence is contrary to the weight of the evidence.

Our standard of review in domestic violence matters is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be not reasonably supported by the record and thus "'clearly mistaken'" or so "'wide of the mark'" as to result in a denial of justice. N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J 88, 104 (2008) (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J 596, 605 (2007)); see also C.M.F. v. R.G.F., 418 N.J. Super 396, 401 (App. Div. 2011). We must accord considerable weight to the trial judge's findings of credibility, given that the judge is in a unique position to evaluate the demeanor of the parties and the other witnesses. See Cesare v. Cesare, 154 N.J. 394, 412 (1998);Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J 474, 484 (1974). As the Supreme Court has emphasized, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. SeeE.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.

In adopting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses and cohabitants." N.J.S.A. 2C:25-18. The Legislature intended the Act to "'assure the victims of domestic violence the maximum protection from abuse the law can provide.'" Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18). The term "victim of domestic violence" refers to persons protected by the Act and includes a person who had a dating relationship, as here. N.J.S.A. 2C:25-19(d).

"Domestic violence" means the occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19(a). However, the commission of one or more of the fourteen enumerated acts does not automatically require the issuance of an FRO. The court must consider other factors including the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29(a).

One of the specified criminal acts is "harassment" in violation of N.J.S.A. 2C:33-4. See N.J.S.A. 2C:25-19(a)(13). Harassment is defined in the Criminal Code to encompass conduct in which a defendant, "with purpose to harass another":

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4.]

Here, we agree that the proofs found credible by the trial judge adequately established that defendant engaged in a course of conduct designed to alarm or seriously annoy plaintiff under N.J.S.A. 2C:33-4(c). In addition to a finding of a course of annoying or alarming conduct, there also must be a finding that defendant acted with a purpose to harass. State v. Duncan, 376 N.J. Super. 253, 261 (App. Div. 2005). Even without a direct statement of the intent of the course of conduct, a purpose to harass another may be inferred "'from the evidence presented'" and from "'common sense and experience.'" Id. at 262 (quotingState v. Hoffman, 149 N.J. 564. 577 (1997)). The actions alleged by plaintiff and acknowledged by defendant included following plaintiff without her permission while she was working, blocking her in the street, yelling at her, threatening her, and writing a damaging letter to her employer. While defendant said he just wanted to be friends, common sense dictates the conclusion that defendant engaged in this course of conduct with the intent to harass plaintiff.

We have reviewed defendant’s arguments, none of which were raised at trial. We find no merit in defendant’s arguments, which do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following.

We must reject defendant's double jeopardy claims as inapplicable to this civil matter. The Double Jeopardy Clause of theFifth Amendment to the United States Constitution protects against a second prosecution for the same offense after a conviction or an acquittal, and also prohibits multiple punishments for the same offense. State v. Widmaier, 157 N.J. 475, 489-90 (1999). A complaint brought under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, is a civil action separate and distinct from a criminal action. State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007). At the hearings on the prior restraining orders, there were neither prosecutions nor acquittals.

Further, we are also not persuaded by defendant's arguments concerning collateral estoppel and res judicata. These arguments are inapplicable in this case, where, although a prior restraining order was dismissed, a new restraining order was sought involving additional allegations. As we held in T.M. v. J.C., 348 N.J. Super 101, 106 (App. Div.), certif. denied, 175 N.J. 78 (2002), "an individual act previously rejected as insufficient to constitute domestic violence may take on a greater significance because the [prior] act is later repeated in a manner that may amount to a course of conduct prohibited by [the Act]." Thus, a prior act found not to constitute domestic violence may be considered along with new conduct to determine whether a plaintiff has established domestic violence on the basis of a subsequent complaint. Ibid. This is especially true here where defendant admitted that all the prior acts pled in the complaint and testified about by plaintiff were true.

Applying the circumscribed review standard here, we affirm the trial court's findings, as they are supported by substantial credible evidence in the record.

Affirmed.

M.C. V. P.R. A-5690-09T3 June 14, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5690-09T3

M.C., Plaintiff-Respondent, v. P.R., Defendant-Appellant.

Submitted May 31, 2011 - Decided June 14, 2011

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-1847-10.

Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone and Brett E.J. Gorman, on the brief).

Respondent has not filed a brief.

PER CURIAM

In this unopposed appeal, defendant P.R. contests the trial court's issuance of a final restraining order ("FRO") against him in favor of plaintiff M.C., under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). Defendant's primary argument is that the trial court erred in disallowing three fact witnesses who were apparently present in the courtroom and who defendant wished to call at the FRO hearing.

For the reasons that follow, we affirm the trial judge's exclusion of testimony from two of the proffered defense witnesses because they would not have added relevant testimony that could have materially affected the trial court's assessment of the proofs. However, we agree with defendant that he should have been allowed to present testimony from the third proposed witness, Victor Montalvo, attesting to facts about plaintiff's own conduct that could have materially affected the court's analysis of her asserted fear and her actual need for restraints. Consequently, the matter is remanded to the trial court to permit defendant to present testimony from Montalvo, and any relevant proofs that plaintiff may wish to present in rebuttal.

I.

A.

This matter involves cross-complaints for restraining orders reciprocally brought under the Act by plaintiff (in Docket No. FV-01-1847-10), and by defendant (in Docket No. FV-01-1850-10). In each instance, the trial court granted the respective complainant a temporary restraining order ("TRO"). The cross-complaints were tried together in one hearing. Although defendant attempted at the hearing to disavow the fact that the parties formerly were in a dating relationship with one another, the trial judge correctly noted that the TRO applications of each party had asserted the existence of such a prior dating relationship, thereby providing the court with jurisdiction to consider the parties' respective complaints. See N.J.S.A. 2C:25-19(d) (defining a "victim of domestic violence" under the Act to include "a person with whom the victim has had a dating relationship"); see also N.J.R.E. 803(b)(1) (allowing the evidential use of prior statements made by a party-opponent).

At the conclusion of the hearing, the judge granted plaintiff's request for an FRO, but denied defendant's own FRO application. Defendant has only appealed the entry of the FRO against him in Docket No. FV-01-1847-10. He has not appealed the denial of the FRO that he had sought under Docket No. FV-01-1850-10.

Both parties were unrepresented at the hearing. Plaintiff testified in her own behalf. She also presented testimony from her father. Defendant likewise testified in his own behalf. He also presented testimony from two of his acquaintances, Laura Lavastida and Rosa Ramos. For reasons that we will describe in more detail, the trial judge did not accept Lavastida's testimony in his analysis of the proofs. In addition, the judge halted the testimony of Ramos, after she acknowledged that she had not been present with the parties when the pivotal events at issue occurred. As we have already noted and will elaborate upon later in this opinion, defendant was not permitted to call any other witnesses.

B.

Because we have concluded that the record is incomplete, we do not recite the facts definitively or comprehensively. The testimony of the parties diverged substantially about the critical events. With those constraints in mind, we summarize the proofs that have been adduced so far.

The relevant events that gave rise to the parties' cross-applications apparently began on June 10, 2010. Although plaintiff's own narrative began at a later point in time that day, defendant testified that the pertinent events began unfolding shortly after noon, when plaintiff allegedly telephoned him and expressed a desire to meet. Although plaintiff initially denied calling or sending any text messages to defendant around that time, defendant produced his cellular phone as evidence, displaying a text message sent by plaintiff at 12:50 P.M. on that date, reading "I need you ASAP. I just beat [t]he [sic] s[**]t out of my kids when [Allison]¹ jumped me." The inference that defendant was attempting to establish from the text message was that plaintiff had suffered facial injuries during an altercation with her daughter Allison, and not during a fight later that day with him. Another text message plaintiff sent that day to defendant, which was also displayed to the court on defendant's cell phone, read in part, "And my daughter hits me."

In any event, the two parties allegedly agreed to meet for lunch on June 10 at an establishment named Gourmet Pizza.² Later the same day, at some time between 7:00 and 11:00 P.M., defendant was driving his vehicle, with plaintiff as a passenger. They had been at defendant's gym and had gotten into a dispute there. During the ride home, the dispute escalated. The parties agree that plaintiff got out of the vehicle while they were still en route to her residence.

According to plaintiff's testimony, she became afraid because defendant was acting "aggravated and agitated." She consequently asked him to let her out of the vehicle when they stopped at a traffic light.

Defendant's competing version was that, as their argument escalated about the status of their relationship, plaintiff suddenly got out of his vehicle while it was still moving. According to defendant, after plaintiff left the vehicle, he was unsure where she was, and he could not stop because he had to keep moving with the flow of traffic.

After the plaintiff got out of his vehicle, defendant contacted plaintiff's fifteen-year-old daughter, Allison, by telephone. He then picked Allison up at plaintiff's residence. He drove back to the vicinity where plaintiff had left his vehicle, with Allison now a passenger. Upon locating plaintiff there, defendant and Allison were able to convince her to reenter the vehicle. Plaintiff entered the front seat, while her daughter rode in the back. Defendant then drove the trio to plaintiff's residence.

According to plaintiff, upon their arrival at her residence, she asked to get out of the vehicle. However, defendant refused to let her out, using his control of the automatic master door locks to keep her inside. Defendant testified, on the other hand, that he asked plaintiff to leave the vehicle once they arrived at her residence, but that she refused to do so.

While the parties and Allison remained in defendant's vehicle, another vehicle pulled up to the residence. The vehicle was driven by a friend of plaintiff named Mary Villez.³ Villez apparently was dropping off a friend of her son, another daughter of plaintiff.

Defendant got out of his vehicle and approached Villez's vehicle. At that point, defendant and Villez got into a dispute. Villez got out of her own vehicle. She walked up to defendant's vehicle, where she stood near the passenger-side door while plaintiff was seated. Plaintiff testified that she then saw defendant push Villez to the ground, and that he punched and kicked her.

In his own testimony, defendant denied that he had punched or kicked Villez. Instead, he stated that he was concerned that Villez was going to break his vehicle's electric window, so he forced his way in between her and the vehicle. At that point, Villez allegedly threw a punch at him. Defendant further recounted that plaintiff and Villez had threatened him, warning that they were "gonna blow [his] head off." Villez then allegedly shouted for plaintiff to "grab the keys" to the vehicle.

Defendant separated from Villez. He then entered his vehicle, again on the driver's side. At that point, a struggle for the vehicle's keys ensued between plaintiff and defendant. During their struggle, plaintiff suffered what she described as a "deep cut" on her hand. She further testified that defendant punched her in the face.

Defendant, on the other hand, denied that he punched plaintiff. He also contended that the cut on plaintiff's hand had been caused inadvertently, as the two parties had struggled for the keys.

Defendant then drove plaintiff to the house of plaintiff's parents, a distance of approximately three miles. When they arrived at the parents' residence, plaintiff got out of the vehicle.

Meanwhile, the police were called, apparently by Villez's son. The police located defendant's vehicle while it was en route to the parents' residence. A patrol car thereafter followed defendant's vehicle until the parties arrived at the parents' residence. Police officers then got out of the patrol car and arrested defendant.

Plaintiff presented photographs at the trial stored on her cell phone, showing her injuries to her hand and her face. Plaintiff's father testified, and he corroborated his observations of those injuries. According to the father, the blood on his daughter's hands was "fresh" when she arrived at his house in defendant's vehicle. The father also testified that the police arrested defendant after "some resisting on [defendant's] part."

According to plaintiff's narrative, on the next morning, June 11, she called defendant in order to arrange for the return of some important work-related materials that had been left in his vehicle. She testified that when he received her call, defendant threatened to shoot her, her mother, and Villez with a shotgun.

Defendant presented a markedly different version of the events of June 11. According to defendant, on that day, plaintiff vandalized his vehicle, writing on the vehicle's window "[P.R.] is a male whore" and his telephone number. Defendant claimed this was the second time that such a vandalizing incident had taken place in recent weeks.

C.

After completing his own testimony, defendant attempted to present several additional witnesses in his defense, and also in support of his cross-complaint for an FRO. When he first indicated to the trial judge his intention to do so, the judge requested defendant to give "a proffer as to what [each of] your witness[es] is going to say." The judge further inquired "[w]ere they [the witnesses] there on this particular day?" That prompted the following exchange between the judge and defendant:

[DEFENDANT]: Were they [there] on which day? I have several things there. When she [plaintiff] marked my windows they were there.

THE COURT: On June 10th, June 11th. That's the day that you say that these happened. Did they see her mark your windows or did they just see --

[DEFENDANT]: No, she told me she marked them.

THE COURT: The I [sic] don't need a witness. If she told you then I don't need a witness. Were they there on this, I've heard a long story about what happened on this day. Were they there at that time?

[DEFENDANT]: No, they were there when she [plaintiff] called me and threatened me. I heard her on my speaker phone saying that she was gonna blow my head off and so was Mary Velasquez.

THE COURT: Every one of these witnesses? I only need to hear from one.

[DEFENDANT]: Your Honor, I'm, they were here. You don't --

THE COURT: I'll hear from one witness, but I don't need to hear from five or six witnesses telling me the same thing.

[DEFENDANT]: I don't want to waste the Court's time but I --

THE COURT: Well, you will waste the, you will waste the [c]ourt's time if you present five or six witnesses telling me the same thing. I only need to hear it once.

[DEFENDANT]: Okay, Your Honor. I'm going to present a witness and --

THE COURT: Call your witness.

[DEFENDANT]: She can probably tell you better than anybody.

Defendant thereafter presented the testimony of Lavastida, who is an acquaintance of his and apparently a member of his church. Lavastida testified that plaintiff had called or text-messaged defendant "more than 50 times in the period of an hour" while Lavastida was in his presence. However, the judge did not allow Lavastida to elaborate further about those text messages because defendant had not included specific allegations about them in his cross-complaint.

Lavastida then proceeded to testify about allegedly overhearing plaintiff on June 12 (the day after she had procured the TRO against defendant) threaten to "blow [defendant's] head off" in a telephone conversation that was being amplified through a speaker phone. Lavastida further testified that she overheard plaintiff, in that same call, tell defendant that "she wanted three to four grand to pay three months rent and to go back to Florida," adding that "if you [defendant] marry me [plaintiff][,] I will drop all the charges against you."

The judge found Lavastida's testimony deficient because she was admittedly reading from notes that she had made a few days before the hearing. After the judge instructed Lavastida to put away the notes, Lavastida was unable on cross-examination to remember significant facts.

The testimony of Ramos, another acquaintance of defendant, was terminated by the judge, after it became apparent that Ramos was not present with the parties when the operative events occurred and that she lacked any first-hand information on those events. Defendant indicated to the court that he expected Ramos would testify that plaintiff was "never [his] girlfriend[,]" but the judge admonished defendant that he had admitted a dating relationship in his own application for restraints. Consequently, Ramos was excused from the witness stand.

As Ramos stepped down, the judge announced, without making any inquiry of defendant, that "there are no further witnesses." In actuality, defendant had three more witnesses present who were prepared to testify. However, defendant made no further effort to reopen the case. He did not supply the judge with a specific proffer as to what each of those three witnesses were expected to say.

D.

After affording each party a chance to provide closing arguments, the judge rendered his oral decision. As noted, he granted an FRO to plaintiff and denied an FRO to defendant. The judge canvassed the proofs that he had heard. On the whole, the judge essentially found that plaintiff's proofs, particularly the testimony from her father, were credible. The judge concluded that defendant had indeed restrained plaintiff in his vehicle against her will, that he had punched her in the face, and that he had cut her thumb. Based upon these factual findings, the judge stated that he was "satisfied that [defendant's] actions that day do rise to the level of assault and harassment and warrant the entry of a final restraining order against [defendant] in favor of [plaintiff]."

By contrast, the judge was unpersuaded by defendant's claim that plaintiff herself had engaged in harassment or other actionable forms of domestic violence. The judge stated that he could "find no credible evidence to indicate that [plaintiff] has done anything of a domestic violence nature that would warrant the entry of a restraining order against her." Consequently, the judge dismissed defendant's cross-complaint and dissolved the TRO that had been preliminarily issued in his favor.

The court entered a corresponding final judgment dated June 24, 2010, detailing the scope of the restraints placed upon defendant under the FRO and imposing the minimum mandatory fine.

II.

Defendant now appeals the entry of the FRO issued against him. He raises two arguments: (1) the trial judge unfairly truncated the proofs that he wanted to present at trial; and (2) plaintiff's conduct does not rise to a level of severity that comprises domestic violence under the Act.⁴

In considering defendant's appeal, we remain cognizant that the Act is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18; see also Cesare v. Cesare, 154 N.J. 394, 399 (1998). Trial judges hearing FRO applications essentially must consider two critical questions: (1) Has defendant engaged in conduct that constitutes one of the offenses enumerated under the Act in N.J.S.A. 2C:25-19(a)?; and (2) Are restraints upon defendant warranted in light of that conduct, if it is proven? The statute directs judges, when they consider these questions, to take into account: (1) the previous history of any domestic violence between the parties; (2) any "immediate danger to person or property;" (3) the parties' financial circumstances; (4) the "best interests" of the alleged victim and any child; (5) on issues of custody and parenting time, "the protection of the victim's safety;" and (6) whether a verifiable order of protection was issued by another jurisdiction. See N.J.S.A. 2C:25-29(a)(1). The complainant's factual allegations must be proven by a preponderance of the evidence. N.J.S.A. 2C:25-29(a).

When assessing the surrounding circumstances and a complainant's actual need for restraints, or the need for the continuation of restraints, the trial court must evaluate whether the complainant is objectively in fear of the defendant, and "whether there is a real danger of domestic violence recurring." Stevenson v. Stevenson, 314 N.J. Super. 350, 364 (Ch. Div. 1998) (discussing these concepts in the context of a defendant's application to dissolve previously-issued restraints). In that vein, our courts have recognized that the Act protects victims, not only from physical harm, but also from mental or emotional harm. Carfagno v. Carfagno, 288 N.J. Super. 424, 436 (Ch. Div. 1995). A complainant's fear, or lack of fear, of a defendant inflicting such physical or mental harm in the future is "important to consider." Ibid.

As a procedural matter, we recognize the delicate balance that trial judges hearing domestic violence cases must strive to achieve: on the one hand, providing expeditious and ready access to the courts for true victims of domestic violence, and, on the other hand, affording defendants in such cases with a fair opportunity to contest the allegations. This task becomes even more difficult where, as here, both parties are self-represented, and thus lack the courtroom skills of attorneys and a mastery of the Rules of Evidence.

In Franklin v. Sloskey, 385 N.J. Super. 534, 543-44 (App. Div. 2006), we underscored the importance of assuring due process to litigants in domestic violence matters, providing such procedural safeguards as the right to cross-examine witnesses. We further noted in Franklin that "in a pro se trial a judge often has to focus the testimony and take over the questioning of the parties and witnesses[,]" provided that the court does so in "an orderly and predictable fashion." Id. at 543.

The present appeal is distinguishable from Franklin in that the trial judge here, to his credit, took pains to afford both plaintiff and defendant an opportunity to cross-examine their respective witnesses. When the witnesses on the stand or the questions posed by the litigants strayed into irrelevant topics, the judge appropriately endeavored to channel their testimony back into germane subjects, in the "orderly and predictable fashion" that is called for under Franklin. The judge also invited closing arguments from the parties.

In addition, we are satisfied that the trial judge appropriately limited the testimony of Ramos, who apparently had no first-hand knowledge of relevant facts. Instead, the examination of Ramos drifted into irrelevant matters such as plaintiff's marital status. See N.J.R.E. 402 (requiring testimony to be relevant) and N.J.R.E. 602 (requiring testimony of non-expert witnesses to be based upon personal knowledge). The judge also had reasonable grounds for disregarding the testimony of Lavastida because of her admitted lack of independent recollection and her reliance upon non-contemporaneous notes that did not satisfy the criteria for admissibility as recorded recollections under N.J.R.E. 803 (c)(5).

Defendant argues that the court erred in totally excluding his three additional witnesses who, unlike Lavastida and Ramos, he was not given a chance to call to the witness stand. In support of his proffer for those witnesses, defendant has tendered, in his appendix on appeal, a signed written statement from each of them. Although we ordinarily would be disinclined to consider such post-hearing proffers because they were not first presented to the trial court, we have considered them in light of the unique circumstances of this case and the interests of justice. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234-35 (1973).

Upon reviewing the written proffers, we are satisfied that two of the proposed defense witnesses  Karl Burrows and Janette Burrows  would not have provided testimony that could have materially affected the trial court's overall assessment of the proofs. We need not detail the substance of the factual assertions of Mr. and Mrs. Burrows, except to note that they describe events that have little, if any, bearing on this case, particularly since defendant has not appealed the denial of the FRO that he had affirmatively sought. Their proposed testimony largely relates to events at other locations, irrelevant matters within defendant's church, and their own communications with defendant. Their proposed testimony, even if it is arguably of some relevance to this case, is so remote and attenuated that we discern no need for the FRO hearing to be reopened to adduce their testimony. Cf. N.J.R.E. 403 (giving courts the discretion to exclude proof where its probative value is substantially outweighed by other factors).

We reach a different conclusion, however, respecting the trial court's exclusion of the proposed testimony of Montalvo. Montalvo apparently is a friend of defendant's who has participated in body-building competitions with him. One of those competitions occurred on June 12, 2010, two days after the June 10, 2010 alleged assault of plaintiff and one day after plaintiff had procured a TRO against defendant. According to Montalvo's written statement, at the June 12 competition, he witnessed defendant receive a telephone call from plaintiff and place the call on a speaker phone. Montalvo then overheard plaintiff tell defendant that she was going to "have him locked up," continuing to attempt to speak to him even after he protested that she had a restraining order and he thus was not permitted to speak with her.

Montalvo's written statement further describes an incident where he was present with defendant at a local mall, when they both saw plaintiff. According to Montalvo, plaintiff persisted in trying to speak with defendant at the mall even though he made clear he did not want to speak with her. Montalvo recalled that between ten and twenty minutes after this encounter at the mall, plaintiff called defendant on his cell phone, and defendant again activated his speaker phone. Montalvo then heard plaintiff state, "you ought to check your car because I think someone did something to it." When Montalvo got outside, he observed that someone had written on defendant's truck, in pink lipstick, that defendant is a "male whore," along with defendant's telephone number.⁵

If Montalvo testifies in accordance with his written statement, and, after being subjected to cross-examination, the judge finds his testimony credible, it might be established that he has personal knowledge of conduct by plaintiff that might have substantiated defendant's contention that plaintiff was improperly attempting to use a restraining order in this case as, in effect, a sword rather than as a shield. Cf. State v. Hoffman, 149 N.J. 564, 586 (1997) (noting the court's role in assuring that the Act is not improperly used as a sword rather than as a shield legitimately need for protection). His testimony could conceivably rebut plaintiff's claims that she needed the protection of the court, that she was truly in fear of defendant, and was in the sort of "immediate danger" contemplated under N.J.S.A. 2C:25-29(a)(2). Although Montalvo's proffered testimony, in some respects, would appear to overlap with portions of that of defendant himself, Montalvo's corroboration of defendant's account could have had probative significance, much as the testimony of plaintiff's father was admitted to independently substantiate the testimony of plaintiff herself concerning the alleged assault.

The trial judge did not have a chance to consider the potential import of Montalvo's testimony because he terminated the hearing pre-emptively, immediately after Ramos testified. We appreciate the practical difficulties facing the trial judge in this emotionally-charged case involving two self-represented litigants, but we are not confident that Montalvo's testimony would have been entirely irrelevant and inconsequential. Although Montalvo's testimony might not disprove that defendant struck plaintiff on June 10 (conduct that we certainly do not condone and which in itself could subject defendant to criminal and civil liability), the testimony could undercut plaintiff's claims that she was thereafter so fearful of defendant that she needed judicial restraints preventing him from having any further contact with her.

We therefore remand this matter to reopen the FRO hearing, for the limited purpose of presenting Montalvo's testimony and, in fairness, any relevant proof by plaintiff to rebut that testimony. Following the completion of such evidentiary presentations, the trial court should reexamine the record anew and determine, once again, whether an FRO in favor of plaintiff is warranted in light of the proofs as a whole. In the meantime, the restraints under the FRO shall remain in place, pending the completion of the remand hearing.⁶

Affirmed in part and remanded in part, consistent with this opinion. We do not retain jurisdiction.

1 We use a fictitious name for this daughter.

2 Defendant apparently contends that during that lunch, plaintiff showed him her facial injuries from her earlier fight with her daughter, although he only raised that point in cross-examining plaintiff and did not testify about that contention.

3 This individual is primarily referred to as "Mary Villez" in the trial transcript, but is also variously referred to as "Mary Vasquez" and as "Mary Velasquez." She is also referred to as "Mary Vazquez" in defendant's brief on appeal. We shall use the "Villez" spelling in this opinion.

4 Again, we emphasize that defendant has not appealed the trial court's dismissal of his own cross-complaint.

5 Montalvo does not clarify whether this incident took place before or after the TRO was issued in plaintiff's favor.

6 Our conclusion that the record must be reopened makes it premature for us to reach defendant's argument that the evidence is insufficient to support the entry of an FRO under the statute.

J.N. V. S.B. A-0538-10T3 June 9, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0538-10T3

J.N., Plaintiff-Respondent, v. S.B., Defendant-Appellant.

Submitted May 18, 2011 – Decided June 9, 2011

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-001191-05.

Todd Wilson, attorney for appellant.

J.N., respondent pro se.

PER CURIAM

Defendant S.B. appeals from the denial of his second motion to vacate a final restraining order (FRO) entered on March 30, 2005. We affirm.

Defendant is a former New Jersey State Trooper and police officer.¹ He and plaintiff had a romantic relationship for approximately four years. After a lengthy trial, Judge Lisboa concluded that throughout their relationship, defendant engaged in numerous and egregious acts of domestic violence against plaintiff, including physical assaults and harassment. The judge entered the FRO. Defendant did not appeal.

In June 2008, defendant filed his first motion to vacate the FRO, arguing the parties had no contact since the entry of the FRO, plaintiff had an unsubstantiated fear of him, and the FRO prevents him from securing employment opportunities. Plaintiff opposed the motion. She advised the court she still feared defendant and was "still looking over her shoulder."

Judge Mark Nelson considered the factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) to determine whether defendant had shown good cause to dismiss the FRO. Those factors are as follows::

(1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court.

[Id. at 35.]

The judge denied the motion, finding that

it doesn’t appear that [plaintiff is] telling me cavalierly sure, Judge, I'm afraid. And when I look at her face sitting there it doesn't look to me like she's just telling me yeah, Judge, I'm afraid just to tell me -- just to get back at [defendant] or to carry a vendetta on past three years. It looks to me that she's afraid. She tells me she's afraid.

. . . .

Some people become afraid more than others. I have to apply the reasonable persons standard. She tells me she's afraid, she's still looking over her shoulder. She's apparently had -- it was a bad relationship that's noted between both of them, so they had a bad relationship.

The judge concluded plaintiff had rational concerns, was a reasonable person, and acted in good faith in opposing the motion. Defendant did not appeal.

In May 2010, defendant filed a second motion to vacate the FRO primarily arguing that the FRO should be vacated based onCarfagno factors two and three. He conceded he had two prior FROs issued against him in domestic violence cases involving other women (factor six), but argued plaintiff only had a subjective as opposed to an objectively reasonable fear of him because they had no contact for several years and have no relationship. He also argued the FRO restricted his employment in the security industry.

Plaintiff opposed the motion based on defendant's relentless attempts to have his two other FROs dissolved, his past history of domestic violence against her and other women, her belief he sought to obtain a weapon, and her continued fear of defendant. She testified as follows:

My fear doesn't end because it's six years. There is no measurement. I don't know what [defendant's attorney] thinks fear [is] and how it's measured in a woman who has gone through this, I don't know how it's measured, by an attorney, or by the [c]ourt, but my fear hasn't changed, Your Honor. I would swear on it. . . .

. . . .

I think he will come to -- first of all, I know that just the buildup of time, I feel, has only gotten him angry that all of the things he wasn't capable of doing, he feels restricted, that I was punishing him. I wasn't punishing him. That was handed down by a court after a very long trial.

. . . .

I feel he will come and pursue me. He needs to get it out, or he needs to talk to me, or whatever. I don't know how he feels, and that's very fearful to me. I know how he behaved when I was present in his life. I know how he behaved toward the other women when I was present in his life.

. . . .

. . . I know how I felt for the four years that I was there. And it hasn’t changed. I don't trust him. I don't believe him. He lied then, and I don’t feel that he's being honest now, and I'm not changing the way that I feel. I am scared. I don't trust him. I believe this is going to be an opportunity for him to go ahead and do whatever it is that he's been wanting to do. That paper is the only thing that's protecting me.

In a written opinion, Judge Kenny addressed all of the Carfagno factors and relied on Kanaszka v. Kunen, 313 N.J. Super. 600 (App. Div. 1998). Notably, as to factor one, the judge found that plaintiff "strenuously" opposed the dissolution of the FRO. Heavily weighing factor two, the judge found there was "persuasive evidence" that plaintiff had an objectively reasonable fear of defendant based on the long history of domestic violence between the parties, which was marked by defendant's repeated, egregious physical assaults of plaintiff, and his history of restraining orders in domestic violence matters with two other women. The judge also found that

[defendant's] history of aggression strongly suggests that [he] remains a person prone to committing acts of violence, and he has shown no evidence to counter this. This is an objectively reasonable basis for [plaintiff]'s continued fear.

In addition to a long history of domestic violence, there have been no substantial changes of circumstances that should diminish [plaintiff]'s fear. [Defendant] remains a relatively young and apparently healthy man who has worked both as a police officer . . . and in the private security industry. The parties live in towns easily accessible to one another. Most significantly, [defendant] has not undergone any form of domestic violence treatment which would signify an attempt to address his volatile behavior.

The judge concluded defendant's "mere compliance with the FRO" did not represent a "substantial changed circumstance" that would dissipate plaintiff's fear, and plaintiff had a rational basis to remain fearful of him.

Addressing factor six, the judge relied on evidence of the two prior FROs. She concluded this evidence, along with "evidence of violent turmoil" throughout plaintiff's and defendant's relationship, "suggests that [defendant] remains a serious risk to engage in violent behavior."

As to factor seven, the judge found that "[w]hile [defendant] was not ordered to go to counseling, this factor is not dependent on whether the counseling is court ordered. [Defendant] has failed to take the initiative to address his problems with violence through counseling." As to factor nine, the judge found plaintiff was not acting in a bad faith attempt to punish defendant; rather, "[h]er principal motive is the continuance of her safety as she genuinely maintains that it is the FRO which has protected her for the last five years."

The judge concluded defendant failed to demonstrate good cause and a substantial change in circumstances that would justify dissolution of the FRO, and plaintiff's fear of defendant is objectively reasonable. Thus, the judge denied defendant's motion. This appeal followed.

On appeal, defendant argues Judge Kenny erred by (1) finding plaintiff had an objectively reasonable fear of him; (2) applying a subjective standard in considering plaintiff's fear; (3) finding defendant failed to demonstrate a change in circumstances; (4) relying on Carfagno factors six and seven; and (5) failing to accord weight to Carfagno factors three, four, five, nine and ten. Defendant also contends the judge erred by requiring him to show a substantial change in circumstances to justify dissolving the FRO. We disagree with defendant's contentions.

Relief from an FRO is governed by N.J.S.A. 2C:25-29d, which requires a showing of good cause. In Kanaszka, supra, 313 N.J. Super. at 607, we adopted the eleven Carfagno factors the trial court should consider when determining whether good cause has been shown. When considering factor two, whether the victim fears the defendant, the court must look at objective fear, not subjective fear. Carfagno, supra, 288 N.J. Super. at 437-38. "Objective fear is that fear which a reasonable victim similarly situated would have under the circumstances." Id. at 437. "[T]he previous history of domestic violence between the parties must be fully explored and considered to understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka, supra, 313 N.J. Super. at 607. The "inquiry into the history of the relationship and prior acts of domestic violence become important to consider in evaluating the necessity for continued protection." Id. at 608. However, "[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Id. at 609.

Applying these principles, we are satisfied Judge Kenny properly denied defendant's motion to vacate the FRO. The judge's factual analysis reveals she properly considered all of the Carfagno factors, including whether plaintiff objectively fears defendant, and properly concluded that defendant failed to demonstrate a substantial change in circumstances and good cause for vacating the FRO. The judge also correctly concluded the parties' history of domestic violence and the totality of circumstances established the objective reasonableness of plaintiff's continued fear of defendant. We agree that the history of domestic violence in this case is compelling, and causes plaintiff to remain afraid that defendant will harm her. Given this history, we conclude that plaintiff's fear is objectively reasonable.

Affirmed.

1 Defendant did not submit the transcripts from the trial before Judge Lisboa, who granted the FRO to plaintiff and denied one to defendant. We derive the facts from Judge Lisboa's oral decision, the transcript of the hearing before Judge Mark Nelson on defendant's first motion to vacate the FRO, the transcript of the hearing before Judge Kenny on defendant's second motion to vacate the FRO, and Judge Kenny's written decision.

TAXMAN V. TAXMAN A-4117-09T4 June 14, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4117-09T4

BRIAN TAXMAN,

Plaintiff-Appellant,

v.

PEGGY TAXMAN,

Defendant-Respondent.

Submitted May 23, 2011 - Decided June 14, 2011

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-16647-76.

Stephen E. Klausner, attorney for appellant.

Tanenbaum Law, LLC, attorneys for respondent (Steven M. Tanenbaum, of counsel and on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Brian Taxman appeals an order of the Family Part dated April 1, 2010. The order denied plaintiff's motion to decrease or eliminate the alimony payable each week to his former wife, defendant Peggy Taxman. The order also granted defendant's cross-motion to recover from plaintiff $750 in allegedly-owed arrears.

For the reasons that follow, we affirm the trial court's decision to leave plaintiff's weekly alimony obligation undisturbed. However, we remand the court's ruling as to the supposed arrears for the additional development of proofs.

We briefly summarize the pertinent facts and the parties' contentions. The parties were divorced in September 1977, each of them having been represented by counsel. As part of the divorce judgment, the parties incorporated and agreed to be bound by a separation agreement that they had previously executed. Under that agreement, plaintiff undertook an obligation to pay defendant $250 per week in permanent alimony until she either dies or remarries. The parties further agreed that the alimony obligation would continue even if defendant, who was not working at the time of the divorce, obtained employment in the future. On the other hand, defendant waived the right to seek any increase in the alimony amount, even if plaintiff's future income substantially rose.

Following the divorce, defendant relocated to Missouri with the children.¹ After the children eventually moved out of her residence, defendant became self-employed and opened a beauty salon. She is now approaching the age of eligibility for Social Security.

Starting about five years prior to the motions at issue in this appeal, defendant has been renting a portion of her house to a tenant. The tenant has provided her with rent of approximately $4200 each year. Defendant contends that she uses that rental income to subsidize her health insurance costs.

In the meantime, plaintiff left his job with Eastman Kodak in 1978. Since that time he has operated his own business in New Jersey. The business has expanded over the years, although it has not been as profitable during the recent economic recession. The financial information provided by plaintiff to the trial court reflects that his gross income in 2007 was $52,000, substantially above the gross annual income of $16,500 that he was earning in 1977 when the parties were divorced.

In January 2010, plaintiff filed a motion in the Family Part seeking to eliminate or reduce his continuing alimony obligation, based upon a contention of a material change in the parties' respective financial circumstances. Plaintiff asserted that because of two heart attacks and other health problems, his income had declined. He also claimed that his former wife was cohabitating with another individual, and that such cohabitation eliminates his alimony obligation as a matter of law. Additionally, plaintiff noted that defendant was earning significant income from her business, that she no longer had to support the children, and that she was eligible to collect Social Security benefits.

In her responding papers provided to the trial court, defendant indicated that the alleged cohabiter was merely the tenant residing in her basement. She provided certifications to attest that she had no personal relationship whatsoever with the tenant. Defendant further explained that she was not yet collecting Social Security because there would be substantial penalties for early withdrawal of such benefits. She asserted that she was still entitled to the fixed $250 in alimony each week under the explicit terms of the divorce judgment, and that her future earnings were specifically contemplated as something that would not affect her ongoing right to those alimony payments.

In her cross-motion, defendant contended that plaintiff owed her $750 in arrears for unpaid alimony. She did not provide the court with a basis for this calculation, simply noting that the she had obtained the arrears figure from the Probation Department.

Considering the proofs submitted and the parties' arguments, the Family Part judge concluded that plaintiff had not established a prima facie case of a change in circumstances, as required under Lepis v. Lepis, 83 N.J. 139 (1980), to justify relief from the $250 weekly alimony obligation. Because such a prima facie showing was lacking, the judge did not conduct an evidentiary hearing on the alimony issue. The judge also found plaintiff's claims of cohabitation inadequately substantiated, and he declined to conduct an evidentiary hearing on that issue as well. Consequently, plaintiff's motion was denied.

The judge did, however, grant defendant's cross-motion and order that plaintiff pay her $750 in arrears. To implement that decision, the judge increased plaintiff's alimony payment an additional twenty-five dollars per week until the arrears were paid off.

Plaintiff now appeals the trial court's rulings denying his motion and granting his former wife's cross-motion. He argues that the court mistakenly exercised its discretion in not abating his alimony obligation in light of his financial and medical problems. He also contends that the court's disposition of the cohabitation issue was erroneous, and that a plenary hearing was warranted. Lastly, plaintiff argues that the cross-motion was granted in error, and that there is no competent proof that he was in arrears.

In assessing plaintiff's contentions, we note that the scope of our review of such rulings in matrimonial cases is limited. Generally speaking, we accord considerable deference to the decisions of Family Part judges, and do not disturb such decisions where there is substantial credible evidence in the record to support them. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In particular, the decision as to whether or not to modify alimony is ordinarily committed to the sound discretion of the trial court.Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993).

Applying these deferential review standards here, we affirm the denial of plaintiff's motion for alimony modification, essentially for the reasons stated within the judge's order dated April 1, 2010. We add only a few comments.

As a procedural matter, plaintiff's motion was deficient because, although he supplied some financial information with his moving papers, such as corporate tax returns for his business, he did not serve a completed Family Case Information Statement as required under Rule 5:5-4(a), nor his personal tax returns or an itemization of his actual income, assets, and expenses. Furthermore, on the merits, we agree with the trial judge that plaintiff has not set forth a prima facie basis for relief under Lepis, supra, 83 N.J. at 157. That conclusion is particularly sound, in light of the divorce judgment's explicit declaration that defendant's future earnings would not trigger an alimony reduction, and the fact that the weekly alimony has remained fixed at $250 since 1977 without any cost of living adjustment. Although we appreciate that plaintiff's company has evidently suffered a recent downturn and that he has had health problems, modest fluctuations in income, particularly over a short period of time, do not automatically require alimony to be recalibrated. See Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006).

We also agree with the trial judge that plaintiff failed to make a prima facie showing that defendant is in an economically-intertwined relationship of cohabitation with her tenant. At best, plaintiff only presented a situation of common residency, which was effectively placed into context by defendant's responding certifications. See Konzleman v. Konzelman,158 N.J. 185, 202 (1999).

Defendant's cross-motion respecting the alleged arrears, however, is not supported by substantial credible evidence in the present record. Defendant's certification in support of her motion contained no facts upon personal knowledge, as required under Rule 1:6-6, but instead made a second-hand assertion that "[a]ccording to Probation" the sum of $750 in arrears was owed to her. Plaintiff disputes that amount. There are no payment ledgers or other back-up documents supplied to substantiate the $750 figure. Given the paucity of evidence in the record on the subject, the issue must be remanded for further consideration and the development of appropriate proofs. If, in fact, it turns out that the $750 amount was incorrect, corresponding credits should be given to plaintiff for any extra amounts that he has paid since the April 1, 2010 order was issued.

Affirmed in part and remanded in part, consistent with this opinion. Jurisdiction is not retained.

1 At the time of the divorce judgment, the children were unemancipated, but they have long since been emancipated.