Depos v. Depos

704 A.2d 1049, 307 N.J. Super. 396, 1997 N.J. Super. LEXIS 526
CourtNew Jersey Court of Chancery
DecidedOctober 6, 1997
StatusPublished
Cited by13 cases

This text of 704 A.2d 1049 (Depos v. Depos) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Depos v. Depos, 704 A.2d 1049, 307 N.J. Super. 396, 1997 N.J. Super. LEXIS 526 (N.J. Ct. App. 1997).

Opinion

DILTS, J.S.C.

The question presented is whether the defendant in a domestic violence action should be permitted to take the deposition of plaintiff. The court concludes that depositions should not be permitted except upon a showing of good cause.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

On August 28, 1997, plaintiff, Mrs. Depos1, appeared at the Somerset County Court House and filed a complaint pursuant to the Prevention of Domestic Violence Act (the “Act”). She alleges that the defendant, her brother-in-law, made a terroristic threat against her. She contends that defendant threatened to shoot her if she did not have sex with him. She contends that she has, in the past, been the victim of domestic violence committed by her brother-in-law. A temporary restraining order was entered by this court on August 28,1997.

The parties consented to the adjournment of the final hearing which was ultimately scheduled for October 9, 1997. On September 22,1997, defendant’s attorney entered his appearance with the court and simultaneously served a Notice to Take Oral Deposition of plaintiff, returnable on October 3, 1997. Plaintiffs attorney advised defendant’s attorney that Mrs. Depos would not attend the deposition without a court order. On October 6,1997, application was made for leave to take the deposition of plaintiff in order to take her testimony on whether or not this court had jurisdiction to hear this dispute.

After hearing oral argument and receiving letter briefs, the court denied defendant’s application based on the following conclusions of law.

[399]*399CONCLUSIONS OF LAW

I. There is no right to take plaintiffs deposition because domestic violence actions are deemed to be “summary actions.”

The Act does not authorize the taking of a deposition or any other discovery. Neither does R. 5:7A. The only basis for taking the deposition of a plaintiff in a domestic violence action is R. 5:5-1.

R. 5:5-1 provides in pertinent part: “Except for summary actions ... discovery in civil family actions shall be permitted ...” Therefore, if proceedings under the Act are deemed to be summary actions, then defendant may not take the deposition of plaintiff as of right.

The court concludes that domestic violence actions are “summary actions.” A summary action is one which is short, concise and immediate. Black’s Law Dictionary 1435 (6th Ed.1990). “[S]ummary actions are by definition designed to accomplish the salutary purpose of swiftly and effectively disposing of matters which lend themselves to summary treatment.” Perretti v. Ran-Dav’s County Kosher, 289 N.J.Super. 618, 623, 674 A.2d 647 (App.Div.1996). The court’s conclusion stems from two inherent qualities of domestic violence proceedings. First, trial courts are mandated by statute to proceed in a summary manner in such eases. “A hearing shall be held in the Family Part of the Chancery Division of the Superior Court within 10 days of the filing of a complaint ...” N.J.S.A. 2C:25-29(a). The Act “was enacted with the expressed intent that courts ... promptly and appropriately offer protection to victims of domestic violence.” Sperling v. Teplitsky, 294 N.J.Super. 312, 318, 683 A.2d 244 (Ch.Div.1996). The legislative intent for such mandates is to assure the victim the maximum protection from abuse the law can provide. N.J.S.A. 2C:25-18. To assure such protection, the [400]*400court’s response must be swift because any delay may pose serious and irreversible consequences to the victim. Thus, domestic violence proceedings are “immediate.”

Second, domestic violence proceedings normally require no more than a few hours to conduct. They are “short” and “concise.”

II. Defendant Has Failed to Establish “Good Cause” to Take the Deposition of Plaintiff.

Before a deposition may be authorized by the court in a summary action, the party seeking it must establish “good cause.”

R. 5:5 — 1(d) provides as follows: “All other discovery in family actions shall be permitted only by leave of court for good cause shown ...” Therefore, even in a summary action, a deposition may be authorized by the court only when the party seeking it can establish “good cause.” Although “good cause” is not defined by the Rule, defendant argues “good cause” exists in this case because a factual inquiry of plaintiff is needed to lay the foundation for his motion to dismiss the complaint for lack of jurisdiction. Defendant contends, among other things, that the parties never lived together.

The “good cause” standard in discovery applications is “flexible and its meaning is not fixed and definite. Each application for discovery ... must be evaluated upon the circumstances appearing from all of the pleadings and then determined in the sound discretion of the court.” Tholander v. Tholander, 34 N.J.Super. 150, 152-153, 111 A.2d 643 (Ch.Div.1955). It has been observed that good cause takes “its shape from the particular facts to which it is applied.” Templeton Arms v. Feins, 220 N.J.Super. 1, 21, 531 A.2d 361 (App.Div.1987). This court finds that the determination as to whether “good cause” exists to take the deposition of the plaintiff in a domestic violence matter must also take into account the nature of domestic violence and the legislative intent of the Act.

The Legislature found that “it is the responsibility of the courts to protect victims of violence that occurs in a family or [401]*401family-like setting by providing sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public” N.J.S.A. 2C:25-18. (Emphasis added.) The objective of protecting victims pervades the statute not only in these passages but throughout. “The Legislature finds that battered adults presently experience substantial difficulty in gaining access to protection from the judicial system----” Id.

“The court’s function is to effectuate legislative intent in light of the language used and the objects sought to be achieved and to construe the Prevention of Domestic Violence Act in a fashion consistent with the statutory context in which it appears.” State v. Volpini, 291 N.J.Super. 401, 407, 677 A.2d 780 (App.Div.1996). To allow a deposition in this case would not effectuate the legislative intent and purpose. First, to allow the taking of deposition would prevent compliance with the mandate that the hearing be held within 10 days, given the time it takes to schedule, take and prepare the transcript of a deposition. Second, domestic violence is a cycle of abuse of power and control. The perpetrator has the power and control and the victim does not. The victim comes to court to change that dynamic and to receive protection. Often, however, victims of domestic violence are not represented by counsel, especially in the pretrial stage before a court is in a position to award counsel fees.

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Bluebook (online)
704 A.2d 1049, 307 N.J. Super. 396, 1997 N.J. Super. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/depos-v-depos-njch-1997.