On September 9, 2015, the Appellate Division determined in a reported (precedential) decision, N.T.B. v. D.D.B. (A-4542-13T2), that a spouse’s destruction of a door within the couple’s jointly-owned marital home constitutes the predicate act of “criminal mischief,” pursuant to N.J.S.A. 2C:17-3, thereby supporting a finding of an act of domestic violence.
The parties, husband, N.T.B., and wife, D.D.B., married in 2012 and had one (1) child, an eight (8) year old daughter. The parties resided together with their daughter in a home they purchased during their marriage and owned as tenants by the entirety (i.e. jointly owned as husband and wife).
In December 2013, N.T.B. filed for divorce, and as of March 2014, the parties were sleeping in separate bedrooms within the home. On March 30, 2014, D.D.B. was listening to music in her bedroom alone when N.T.B. told her to lower the volume. When D.D.B. refused to lower the volume, N.T.B. poured juice onto the speakers in an effort to silence them. When that did not work, he ripped the speakers out of the wall, brought them into the bathroom and threw them into the toilet.
The following evening, the parties engaged in an argument in the living room. D.D.B. and the parties’ daughter went inside D.D.B.’s bedroom and locked the door. Plaintiff attempted to open the door and when he realized that it was locked, he broke the door open “by slamming his body against it, splintering the door frame in the process.” After N.T.B. broke the door open, D.D.B. maintained that N.T.B. prevented her from leaving the bedroom, so she slapped him in the face in order to leave. N.T.B. maintained that he never prevented D.D.B. from leaving the room and that she punched him in the face without provocation.
The parties filed cross-complaints each seeking a Final Restraining Order (FRO) against the other. This wasn’t the first time the parties had been involved in a domestic disputes as prior to their marriage, N.T.B. previously obtained a Temporary Restraining Order (TRO) against D.D.B after she burned him with a curling iron.
D.D.B.’s complaint alleged that N.T.B.’s actions constituted both the predicate acts of criminal mischief (N.J.S.A. 2C:17-3) and harassment (N.J.S.A. 2C:33-4), thereby warranting an entry of an FRO against him. N.T.B.’s complaint alleged that D.D.B.’s action of striking him constituted the predicate act of simple assault (N.J.S.A. 2C:12-1).
The trial Judge determined that D.D.B. did not establish either predicate act and denied her request for an FRO. With regard to criminal mischief, the trial Judge concluded that D.D.B. failed to establish that N.T.B. damaged “the property of another” as required by the statute, because “the speakers and bedroom door [were] within the martial home that is shared by the parties, both appearing to be marital property,” The trial judge further held that D.D.B. failed to establish any of the elements constituting harassment.
Under N.J.S.A. 2C:17-3(a)(1), a person is guilty of criminal mischief if he “purposely or knowingly damages tangible property of another…” The trial Judge reasoned that since “the statute does not prohibit a person from causing damage to their own property”, D.D.B. failed to show that N.T.B. committed an act against the tangible property of another, thereby preluding a finding of criminal mischief.
D.D.B. appealed both the trial court’s decision that N.T.B.’s destruction of the speakers did not amount to criminal mischief and that N.T.B.’s conduct was insufficient to establish harassment (among other things); however, she did not challenge the trial Judge’s determination that the destruction of the bedroom door did not amount to criminal mischief and the Appellate Division chose to address this issue on its own accord.
With regard to N.T.B.’s destruction of D.D.B.’s bedroom door, the Appellate panel observed that the parties acquired the home during their marriage as tenants by the entirety.
A tenancy by the entirety allows spouses to jointly own property together as husband and wife, but neither they, nor their creditors, have the right to attach, encumber, convey or transfers their interest. A tenancy by the entirety includes a right of survivorship, so that upon the death of one spouse, the remaining spouse inherits the whole of the property. Therefore, under a tenancy by the entirety, each spouse owns an undivided interest in the whole of the property.
A tenancy by the entirety differs from ownership as tenants in common. Under a tenancy in common, all tenants have an individual, undivided ownership interest, which they may transfer, convey, encumber, etc.
The Appellate Court concluded that while “each tenant by the entirety is a tenant in common with the other during the joint lives of the spouses”, “each co-tenant has a separate and distinct freehold title and each holds his or her title and interest independently of the others.” In light of this, the Appellate Division determined that N.T.B. and D.D.B. each held a separate and distinct interest in their home and therefore, N.T.B.’s act of breaking down D.D.B’s bedroom door did in fact destroy the “property of another” (due to D.D.B.’s undivided interest in the home) and he therefore committed the predicate act of criminal mischief.
The Appellate Division opined that to conclude otherwise would “permit a spouse to purposely and maliciously totally destroy his or her jointly owned marital home, without sanction, leaving no recourse for the innocent spouse to secure an FRO on the basis of the home’s ruin.”
The Appellate Division further disagreed with the trial court’s conclusion that N.T.B.’s act of pouring juice on D.D.B.’s speakers, ripping them out of the wall and throwing them in the toilet did not establish criminal mischief through damage to the “property of another”.
The Appellate panel noted that D.D.B. testified that the speakers belonged to her and were kept in her bedroom, while N.T.B. testified that the speakers were marital property since they were purchased during the marriage and were located inside of the home. However, the trial court did not engage in any analysis to determine whether the speakers were the “property of another” for the purpose of the criminal mischief statute.
The Appellate Division instructed the trial judge on remand to “make specific factual findings as to when, how and by whom, [the speakers] were purchased, for the purpose of determining whether [N.T.B.] enjoyed any tangible proprietary interest in them.”
To assist the trial judge on remand, the Appellate Division even went so far as stating that they “disagree with the proposition that, under New Jersey law, any personal property acquired during the marriage automatically becomes joint property.” To support this conclusion, the Appellate Court cited N.J.S.A. 46:3-17.2, “which recognizes the establishment of a tenancy by the entirety in personal, as well as real property.” This statute requires that “for acquired personalty to be considered joint property held by the entirety, the spouses must “take title to an interest [therein]…under a written instrument designating both of their names as husband and wife.” N.J.S.A. 46:3-17.2(a). “Absent evidence of such an instrument, the common-law prohibition against personal property being held by the entirety prevails.”
Does this decision intend to reach out from the realm of domestic violence law into the sphere of equitable distribution? Matrimonial attorneys routinely divide assets, real property, personalty, etc. based upon the presumption that same were acquired during the marriage, with marital funds, thereby making them “joint marital assets” regardless of title. It appears from the holding in N.T.B. v. D.D.B. that unless there is an instrument designating property as joint, all property acquired during a marriage, with marital funds, would purportedly belong to the possessory owner. Of course, as the trial judge was instructed on remand, specific findings must be made to determine whether another has a proprietary interest in the property. I can’t help but wonder how this decision may change the landscape of equitable distribution of marital assets.