Mugrage v. Mugrage

763 A.2d 347, 335 N.J. Super. 653, 2000 N.J. Super. LEXIS 467
CourtNew Jersey Superior Court Appellate Division
DecidedJune 8, 2000
StatusPublished

This text of 763 A.2d 347 (Mugrage v. Mugrage) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mugrage v. Mugrage, 763 A.2d 347, 335 N.J. Super. 653, 2000 N.J. Super. LEXIS 467 (N.J. Ct. App. 2000).

Opinion

DILTS, J.S.C.

The question presented is whether a spouse against whom a restraining order has been entered in a domestic violence matter has the right to be present at the deposition of the other spouse in a pending matrimonial action. The court holds that the deposition [656]*656should be' conducted in the presence of a spouse against whom a restraining order has been entered under the least restrictive conditions possible, unless “exceptional circumstances” exist.

PROCEDURAL HISTORY

The parties were married on August 7, 1982. One child was born of the marriage. On August 19, 1998, a final restraining order was issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 though 38, protecting Ms. Mugrage from Mr. Mugrage. Mr. Mugrage filed a Complaint for Divorce in October 1998. Ms. Mugrage filed this application for a protective order to exclude Mr. Mugrage from her deposition which is to be taken by Mr. Mugrage’s attorney in the pending matrimonial matter.

The court held a plenary hearing in June 2000 to hear from the parties on two critical issues: prior history of domestic violence between the parties and the reasons Ms. Mugrage wanted Mr. Mugrage to be excluded from the deposition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. A Trial Court May (1) Exclude a Party From a Deposition Only Upon the Demonstration of “Exceptional Circumstances" and (2) Enter a Protective Order Only Upon Good Cause Shown.

A trial court may exclude a party from a deposition only upon the demonstration of “exceptional circumstances”. Pressler, Current N.J. Court Rules (2000), Comment 4:10-3. Rule 4:10-3 allows a trial court, for good cause shown and when justice requires, to enter a protective order to protect a party who is being deposed from annoyance, embarrassment, oppression, or undue burden. In doing so, a court may order the following:

(1) that discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; and
[657]*657(4) that certain matters may not be inquired into, or that the scope of the discovery be limited to certain matters____

II. Factors to be Considered in Determining Whether Exceptional Circumstances or Good Cause Have Been Established

In making the determination of whether “exceptional circumstances” to exclude the other party or “good cause” to warrant a protective order exist, courts must engage in a detailed analysis of the circumstances of the parties and the issues involved. See Dade v. Willis, 1998 WL 260270 (E.D.Pa.1998). In cases where a final restraining order is in effect, several factors should be considered by the court in assessing the need to exclude a party or limit a party’s participation in the deposition in a pending matrimonial action. These factors include:

(1) past history of domestic violence between the parties, including physical abuse, threats, and harassment, Cesare v. Cesare, 154 N.J. 394, 401, 713 A.2d 390 (1998);
(2) any violations of the domestic violence restraining order, Galella v. Onassis, 487 F.2d 986, 997 (2nd Cir.1973);
(3) past disregard of the judicial process by the party sought to be excluded from the deposition, Galella, supra at 997;
(4) anticipation of misconduct during deposition, which would harass, alarm or frighten the party being deposed, Galella, supra at 997;
(5) the party’s fear of the party sought to be excluded, Carfagno v. Carfagno, 288 N.J.Super. 424, 436, 672 A.2d 751 (Ch.Div.1995);
(6) the mental and emotional health of both parties;
(7) general security concerns for the safety of the party being deposed, Hines v. Wilkinson, 163 F.R.D. 262, 266 (S.D.Ohio 1995);
(8) the good faith of the party being deposed in asking to exclude the other party from the deposition; and
(9) any other factor deemed relevant by the court.

The first factor is the past history of domestic violence between the parties, including physical abuse, threats, harassment and verbal abuse. Cesare, supra at 401, 713 A.2d 390. Before deciding the level of protection to which the party being deposed should be entitled, it is necessary to have testimony from the parties as to past domestic violence, unless that prior history was developed fully at the underlying domestic violence hearing and [658]*658findings were made by the trial judge at that time. In this case, there were no findings on the issue of past domestic violence and the court did hold a short plenary hearing on this issue in June 2000 in order to have a basis to evaluate Ms. Mugrage’s application for a protective order. The court finds that Mr. Mugrage has never physically hit Ms. Mugrage, but he did threaten her on one occasion by moving toward her with a raised, clenched fist. The court finds that Mr. Mugrage has thrown objects at Ms. Mugrage and has “growled” at her on several occasions when he was angry. The court finds that Ms. Mugrage has been the victim of verbal abuse in the past. Also, the court finds credible the testimony of Ms. Mugrage that Mr. Mugrage has been upset when the child has been picked up at the police headquarters, and that he dropped the diaper bag to the floor from waist level to express his dissatisfaction. The court finds that Ms. Mugrage has established that she is the victim of past domestic violence, and that she is a protected party under a final restraining order issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 though 33. This factor weighs in favor of entering a protective order.

The second factor is whether there are any violations of the domestic violence restraining order. Galella, supra at 997. In this case, although the police have been called by Ms. Mugrage on occasion and at least one complaint of violation of restraining order has been filed, Mr. Mugrage has not been found guilty of contempt of the existing restraining order. This factor weighs against imposing a protective order.

The third factor is past disregard for the judicial process by the parties sought to be excluded from the deposition. Galella, supra at 997. Mr. Mugrage has appeared in court on several occasions. His conduct has not been disruptive, or anything other than appropriate and respectful. This factor weighs against imposing a protective order.

The fourth factor is whether there is an anticipation of misconduct during the deposition which would harass, alarm or frighten the party being deposed. Galella, supra at 997. Based upon Mr. [659]

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Related

Maryland v. Craig
497 U.S. 836 (Supreme Court, 1990)
Cesare v. Cesare
713 A.2d 390 (Supreme Court of New Jersey, 1998)
Tholander v. Tholander
111 A.2d 643 (New Jersey Superior Court App Division, 1955)
Carfagno v. Carfagno
672 A.2d 751 (New Jersey Superior Court App Division, 1995)
Catalpa Investment Group, Inc. v. Franklin Township
603 A.2d 178 (New Jersey Superior Court App Division, 1991)
Hines v. Wilkinson
163 F.R.D. 262 (S.D. Ohio, 1995)

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763 A.2d 347, 335 N.J. Super. 653, 2000 N.J. Super. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mugrage-v-mugrage-njsuperctappdiv-2000.