Case Notes

The husband appealed, claiming the judge erred in issuing the FRO without taking testimony about the allegations, finding that an act of domestic violence occurred, or determining that the plaintiff wife actually required protection from the defendant. See, e.g., State v. D.G.M., 439 N.J. Super. 630, 635, 110 A.3d 978 (App. Div. 2015). (Interestingly, the husband and wife both later asked the appeals court to disregard the appeal and to leave the FRO in place, but the court was concerned with the impact on public policy of complying with the parties' wishes. It therefore asked each of the parties to file motions explaining why the appeal should be allowed to be withdrawn. Neither did so by the court-designated date, so the appeal went forward.)

The appeals court responded to the husband's claim by noting that although courts should “not lightly disregard private parties' desire to cease litigating their disputes,” the judiciary has an independent duty to remediate any systemic failures in implementing the Act — for example, where a complainant expresses a wish to drop a case against an alleged abuser. “In those instances,” stated the court, “the Act obligates a trial court to examine the plaintiff's reasons for seeking dismissal by conducting a searching inquiry into the plaintiff's understanding of the consequences for the purpose of ascertaining whether, among many other things, the plaintiff has knowingly and freely sought dismissal … . As part of this inquiry, courts must ensure dismissal is not part of an impermissible swap of promises … [as] … [p]ublic policy precludes the entry, continuation, or dismissal of an FRO as a bargaining chip in the settlement of other disputes.”

A second consideration that counseled against keeping the FRO in place absent a hearing and findings of necessity was the fact that, in the court's words, “[a] violation of an FRO has a tendency to trigger law enforcement involvement and may ultimately lead to criminal prosecution. And the entry of an FRO imposes continuing obligations upon the Judiciary, which is required by the Act to 'establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them.' N.J.S.A. 2C:25-34.”

For these reasons, the court decided that it would be improvident to accept the parties' request that it dismiss the appeal. Thus, turning to the merits, the court sided with the husband's previous argument on appeal, concluding that “[a] domestic violence final restraining order may not be entered by consent or without a factual foundation.” Because the trial judge had not found facts supporting the issuance of an FRO, it was vacated, the TRO reinstated, and case was remanded for hearing on the issue of whether an FRO was warranted.

Facebook Service Will Not Do

A woman who moved for permission to serve divorce papers on her husband via Facebook was denied because she could not show that the Facebook pages in question really belonged to her husband or that, if they did, he used them frequently enough that he was likely to receive actual notice of the action. Qaza v. Alshalabi, 2016 N.Y. Misc. LEXIS 4463 (Sup. Ct., Kings Cty. 12/5/16).

The plaintiff wife filed an Ex- Parte Order for Service of Summons by Publication to Facebook on Oct. 17, 2016. In her affidavit in support, she stated that she and her husband were married in New York in June 2011, and that her husband left the marital residence in September of that year, leaving no forwarding address. Two months later, the wife gave birth to a child that she thinks is not her husband's.

The wife said that she had tried to locate her husband through friends and family, but had had no success there. She believed that her husband was now living in Saudi Arabia. As that country is not a signatory to the Hague Convention, the wife doubted that the summons and complaint would reach her husband if she tried to send it through that country's systems. She also claimed that she did not have the funds to place a public notice in a Saudi newspaper, which she said would cost about $3,000.

The wife's counsel, in his affirmation in support of the motion, said that the wife had communicated in the past with her husband on Facebook and that he had searched for public records of the husband, such as driver's license and military service records, to no avail. Counsel contended that alternative service pursuant to New York's Civil Procedure Law and Rules (CPLR) 308(5) would be appropriate because personal service upon the husband could not be made and “substituted service” on a person of suitable age and discretion (CPLR 308(2)) or using “nail and mail” service (CPLR 308(4)) would be impracticable. The plaintiff's attorney argued that service through Facebook could reasonably be expected to give the defendant actual notice that he is being sued for divorce.

Justice Jeffrey S. Sunshine noted that although service by email or other electronic means has been allowed by New York courts in the past, in those cases there was some indication that the defendant would actually receive that notice — such as where the defendant frequently used the email account through which proposed service would be made. Here, however, a view of the defendant's Facebook pages showed that the last activity on them took place in April of 2014. Also, there was inadequate evidence that the Facebook accounts even belonged to the defendant, particularly as the plaintiff attorney's bare assertion that the wife had communicated with her husband through them was not backed up by her sworn statement to that effect or by copies of any such correspondence.

The court noted that “[t]he act for divorce has a multitude of ancillary affects on the rights and liabilities of parties,” including the rights to custody and visitation, to property and inheritance, and the right to pay and receive maintenance and child support. “The Court must be scrupulous in allowing service by a methodology most likely to give notice,” stated Justice Sunshine. “Granting this application for service by Facebook under the facts presented by plaintiff would be akin to the Court permitting service by nail and mail to a building that no longer exists.” Therefore, the plaintiff's application for permission to serve the summons on the defendant by Facebook was denied without prejudice.

CA Court May Consider Fault to Deny Support to Abuser

A California appeals court has found that a trial court did not err in denying a woman support post-divorce because although evidence of fault is generally not admissible when obtaining a California divorce, that proscription does not extend to proceedings concerning the award of spousal support if allegations of spousal or child abuse are proven. In re Marriage of Schu, 2016 Cal. App. LEXIS 1062 (12/6/16).

The husband's job had long required him to be away from home for periods of 28 days, followed by 28 days at home. While he was away, the wife carried on a years-long sexual relationship with an underage boy — a friend of her young son's — beginning when the boy was 12 years old. To facilitate these encounters, the wife provided alcohol and pornography to her son to keep him otherwise engaged; when her daughter found out, the wife threatened the girl with eviction from the house if she told anyone. After the abuse of the boy was discovered, the wife pleaded no contest to seven counts of unlawful sexual conduct with a minor and was sentenced to six years in prison.

During divorce proceedings, the trial court found that the wife had sufficient assets to maintain herself, including more than $900,000 received through equitable distribution, as well as several bank accounts the wife held jointly with her father. The court awarded no spousal support after determining that the wife was at fault for the divorce.

On appeal, the wife pointed to California's Family Code Section 2335, which states: “Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible.” Based on this, she claimed that the issue of fault should not have factored into a decision about the award of support. But the court noted that the wife was ignoring the first phrase of § 2335 — namely, “Except as otherwise provided by statute …”.

In fact, subdivision (i) of Family Code § 4320 specifically permits evidence of abuse of a couple's children when deciding support issues (though it does not make the same exception for the abuse of children outside of the family). The trial court found, and the appellate court agreed, that the wife's threats to her daughter and the provision of alcohol and pornography to her son constituted domestic violence under § 4320. This being the case, the trial court was authorized by statute to consider fault evidence when deciding whether or not to award the wife support. Therefore, its decision not to do so was upheld.