DV reversed where judge excuded defendant’s evidence S.S.S. v. M.A.G.

DV reversed where judge excuded defendant’s evidence S.S.S. v. M.A.G.

Argued September 29, 2010 - Decided

Before Judges Wefing and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-0710-10.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1623-09T2

PER CURIAM

Defendant, M.A.G., appeals from the final restraining order (FRO) entered against him on October 23, 2009, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The order barred him from having any contact with plaintiff, S.S.S., and directed him to stay away from her home, her job and from Rutgers-Newark where she was a student. We reverse and remand for a new trial due to the improper exclusion of evidence that was critical to M.A.G.'s defense.

I.

On October 19, 2009, plaintiff filed a domestic violence complaint in which she alleged:

The plaintiff and defendant were in a dating relationship but have been apart since December of 2008. On October 5th of this year [2009], the defendant came to the plaintiff's school w[h]ere he grabbed her arm and pushed her into a wall. The defendant has been calling the plaintiff and texting her since the October 5th incident and has made comments that the plaintiff and her current boyfriend will find out what is going to happen to them, which the plaintiff feels is a threat of harm.

Below the narrative section, the form contained the following preprinted language:

Which constitute(s) the following criminal offense(s). (Check all applicable boxes).

Of the fourteen possible boxes, the only box marked with a check was "harassment." "Assault" was not checked even though it was one of the fourteen boxes.

In the section of the complaint stating "Any prior history of domestic violence reported or unreported? If yes, explain," the complaint stated "[t]he defendant sexually assaulted the plaintiff in August 2007 which was not reported to the police. The defendant has pushed the plaintiff and pulled the plaintiff's hair numerous times during their past relationship." A judge granted plaintiff a temporary restraining order upon the filing of the complaint, and the TRO was served on defendant the same day. The complaint notified him that a final hearing was scheduled four days later, October 23, 2009.

On the scheduled date, both parties appeared pro se. Plaintiff testified that on October 4, 2009, defendant called her asking to speak with her the next day, which she assumed concerned their visitation the next day with the daughter they had given up for adoption. She agreed to meet with him.
On October 5, at the pre-arranged time, plaintiff left her classroom at Rutgers-Newark and walked outside, where she entered defendant's car. Despite her insistence that she needed to return to her class and had only a few minutes to spare, defendant drove to a motel. According to plaintiff, once they arrived at the motel, he took her cell phone from her and observed that she had been recently "speaking to a whole bunch of guys." He then "cursed [her] out, call[ing] [her] a whore and slut." Next, defendant "grabbed plaintiff by the arm and shoved her against the bedboard causing a bruise. According to plaintiff, defendant picked her up at school in Newark at 9:00 a.m.; the assault occurred in Jersey City at 9:30; and defendant returned her to school in Newark at 10:00.

Although plaintiff intended to immediately seek a TRO, her parents encouraged her to speak to her priest first. Over the next two weeks, defendant sent numerous text messages to plaintiff on her cell phone. She responded by repeatedly telling him to leave her alone. When defendant's attempts to speak to her became more frequent, plaintiff asked her boyfriend, Jorge Morales, to call defendant and tell him to leave her alone. Morales spoke to defendant, telling him that plaintiff would press charges against him unless he stopped calling.

According to plaintiff, on the morning of October 19, 2009, defendant sent her a text message which said, "tell your M-F'n dumbass boyfriend to call me . . . and be a man and you'll see what's going to happen to you." Defendant's statement made her "nervous," and caused her to change her telephone number. She filed the domestic violent complaint, and sought the TRO, that same day.

Defendant asserted that plaintiff's testimony was "all a lie" and nothing had happened. He also offered the judge a letter written by his employer, apparently stating the company's records showed that defendant arrived at work at 8:35 a.m. on October 5, 2009 and left work at 5:00 p.m. The judge refused to accept the letter because it was hearsay.

Defendant then offered in evidence his E-ZPass records showing that he crossed the Bayonne Bridge into Brooklyn at 8:16 a.m. According to defendant it was impossible for him to cross the Bayonne Bridge at 8:16 a.m., arrive at work at 8:35 a.m. and be able to arrive at Rutgers-Newark to pick plaintiff up by 9:00 a.m. The judge refused to accept the E-ZPass records stating, "it doesn't necessarily flow that way." The judge likewise refused to accept defendant's cell phone records, telling him he "could have used any other phone" to call plaintiff. When defendant asked the judge if the judge wanted him to bring a CD of the surveillance camera at his place of employment that would show what time he arrived and what time he left on October 5, 2009, the judge answered "this is your trial date. Today is your hearing date. It's not like I want you to do certain things. This is not -- I'm not asking you to do anything. This is -- these are your proofs."

After making detailed credibility findings, in which he explained why plaintiff was credible and defendant was not, the judge found that defendant assaulted plaintiff on October 5, 2009. He stated:

. . . [Plaintiff] seeks to be left alone. In fact, she was patient about not proceeding with the complaint, but was forced by the defendant because of his continued attempt to contact her and he does not understand that no means no. . . .

So the conduct of the defendant, as the court finds the testimony of the plaintiff credible, is in the nature of an assault. And an assault is one of 14 acts that was included in the Prevention of Domestic Violence Act.

In this case, the grabbing of the arm, causing her pain, exercising control over her, pushing her against the bed board, causing pain to her with the force of his hand as he was pushing her, impacting the pin she had on her chest.

[The testimony] [m]eets the requirement of an assault under the statute. . . . The court finds that she has met her burden of proof by a preponderance of the evidence that the defendant committed the act of assault upon her on the 5th of October, 2009.

The judge also found that the entry of an FRO was necessary to protect plaintiff from further acts of domestic violence:

Therefore, the court finds that defendant is guilty of an act of domestic violence. Her request that she be left alone ha[s] not been observed. His insistence, in this case, requires that the court issue a final restraining order for her protection. And the court will do so.

After the judge made his findings and was about to sign the FRO, defendant asked the judge if he could telephone his employer who, according to defendant, could reach the courthouse in twenty minutes. The judge told defendant it was already 4:10 p.m. and the hearing was over, and therefore the court would not accept any further testimony.

On appeal, defendant raises the following claims:

I. THIS COURT MUST REVERSE BECAUSE [THE] JUDGE . . . DID NOT FIND THAT [PLAINTIFF] PERCEIVED [DEFENDANT] TO BE AN IMMEDIATE THREAT TO PERSON OR PROPERTY.

II. THIS COURT MUST REVERSE BECAUSE [THE] JUDGE . . . ERRED BY REFUSING TO ADMIT INTO EVIDENCE [DEFENDANT'S] E-ZPASS RECORDS.

III. THIS COURT MUST REVERSE BECAUSE THE DUE PROCESS RIGHTS OF THE PRO SE DEFENDANT WERE VIOLATED BY THE COURT'S DENIAL OF AN OVERNIGHT CONTINUANCE TO PERMIT [DEFENDANT] TO PRESENT A WITNESS TO REFUTE CHARGES RAISED FOR THE FIRST TIME DURING TRIAL.

IV. THE COURT MUST REVERSE THE JUDGMENT BECAUSE THE FAMILY PART SUA SPONTE AMENDED THE COMPLAINT TO PLEAD ASSAULT WITHOUT GIVING [DEFENDANT] NOTICE OF THE CHARGE OR AN OPPORTUNITY TO DEFEND.

V. THIS COURT MUST REVERSE THE JUDGMENT BECAUSE THE PLAINTIFF DID NOT SATISFY HER BURDEN OF PERSUASION.

II.

We begin our analysis with Point III, in which defendant maintains that because the E-ZPass records that he sought to admit in evidence were admissible as an exception to the hearsay rule, the judge abused his discretion in refusing to consider those records. We agree. N.J.R.E. 803(c)(6) provides that a business record is admissible as an exception to the hearsay rule, provided that the writing was "made at or near" the time in question, was prepared in the "regular course of business" and it was the "regular practice of that business" to keep such a record. Business records maintained in a computer system are not treated differently from hard copies merely because they are stored electronically. Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 15 (App. Div. 1996). Although no reported decision has ever considered whether E-ZPass records qualify as a business record under N.J.R.E. 803(c)(6), such records are not qualitatively different from the many records that have been so admitted. See Garden State Bank v. Graef, 341 N.J. Super. 241, 245 (App. Div. 2001) (bank's computer printouts of customer's loan history qualified as a business record); State v. Vogt, 130 N.J. Super. 465, 468 (App. Div. 1974) (I.B.M. computer cards on which telephone tracing equipment had recorded time and originating telephone number of allegedly annoying telephone calls admissible as a business record); Hackensack Hosp. v. Tiajoloff, 85 N.J. Super. 417 (App. Div. 1964) (hospital books of account showing services rendered admissible to prove that services were rendered as stated in the account), certif. denied, 44 N.J. 396 (1965).

The E-ZPass records defendant offered in evidence satisfy the criteria of N.J.R.E. 803(c)(6) because: each entry is compiled at the precise time the vehicle passes through the E-ZPass toll location, i.e., "at or near the time of observation," N.J.R.E. 803(c)(6); and such record is compiled in the ordinary course of the system E-ZPass uses to collect toll revenue, i.e., "in the ordinary course of business and it was the regular practice of that business to make [the record]," ibid. The judged erred when he ruled that defendant's E-ZPass records were inadmissible hearsay.

This error was costly to defendant, as it denied him the opportunity to prove that he could not have been in Jersey City at the time he supposedly assaulted plaintiff at the motel. We are not inclined to view this error as harmless. The evidence produced at trial was a classic "he said-she said" dispute, with neither party presenting any witnesses or exhibits to substantiate his or her version of events. Under such circumstances, the wrongful exclusion of defendant's E-ZPass records had the clear capacity to produce an unjust result. See R. 2:10-2. We thus reverse the entry of the FRO and remand for a new trial. If, during the retrial, defendant again seeks to admit his E-ZPass records, the court shall not exclude them as inadmissible hearsay. Defendant shall be required, however, to lay the necessary foundation. See N.J.R.E. 901.

III.

In light of our determination that the exclusion of defendant's E-ZPass records constituted reversible error, it is not necessary for us to address defendant's remaining contentions. For the sake of completeness, we nonetheless will briefly address defendant's contention in Point IV that he was denied a fair trial when the judge sua sponte amended the complaint from a charge of harassment to a charge of assault. Relying on the Court's decision in H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003), and our decision in J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998), defendant asserts that his due process rights were violated when he was forced to confront an assault charge even though the only box checked on the complaint was harassment.

Defendant's argument is unconvincing. In both H.E.S., 175 N.J. at 324-25, and J.F., 308 N.J. Super. at 391, the plaintiff was permitted to testify to acts of domestic violence not even mentioned in the complaint. Here, in contrast, the facts pertaining to the October 5, 2009 assault were contained in the complaint that was served upon defendant. The only defect here was that instead of both the "assault" and "harassment" boxes being marked with a check on the face of the domestic violence complaint, only "harassment" was marked. Nonetheless, the narrative portion of the complaint described the alleged October 5, 2009 assault in detail.

Moreover, the record demonstrates defendant was not surprised by the fact that he would need to defend himself not only against the allegation he had assaulted plaintiff but also that he had harassed her by making a number of phone calls, one of which included a threat. At the trial, defendant attempted to introduce in evidence a letter from his employer attesting to his presence at work all day on October 5, 2009. Obviously, that letter was intended as alibi evidence to defend against the assault charge. It had nothing to do with any of the telephone calls defendant allegedly made in the aftermath of October 5, 2009. Therefore, the fact that defendant brought with him a letter to court from his employer demonstrates that he was not surprised by, and indeed was well aware of, the fact that he was facing an assault charge, and a harassment charge, as the predicate acts.

"Due process requires that a finding of domestic violence be based upon the act or acts of domestic violence alleged in the complaint." Pazienza v. Camarata, 381 N.J. Super. 173, 184 (App. Div. 2005). Clearly, the "act" of assault was specified in plaintiff's complaint. Plaintiff's testimony as to the events of October 5, 2009 was consistent with the allegations on the face of her complaint. Therefore, defendant had sufficient notice and an opportunity to prepare his defense. We reject defendant's claim, raised in Point IV, that his due process rights were violated when the judge found him guilty of assault even though the box next to assault on the preprinted complaint had not been marked.

IV.

Reversed and remanded for a new trial.

Plaintiff has burden to prove DV W. A. W v P. R. R DOCKET NO. A-3054-09T1

Plaintiff has burden to prove DV W. A. W v P. R. R DOCKET NO. A-3054-09T1

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

December 17, 2010

Before Judges Gilroy, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County, Docket No. FV-20-000550-10.

Dughi & Hewit, P.C., attorneys for appellant (Kristin M. Capalbo, on the brief).

Joseph P. Depa, Jr., attorney for respondent.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

Defendant-ex-wife, P.R.R., appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered against her after trial. She contends that plaintiff-ex-husband, W.A.W., failed to meet his burden of proving the two-part test for entry of a restraining order as set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). We agree and reverse.

In Silver, we held that a judge considering a complaint for a domestic violence restraining order has a "two-fold" task: first, the judge "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred"; and second, "whether the court should enter a restraining order that provides protection for the victim." 387 N.J. Super. at 125-26 (citation omitted).

Cognizant of our limited scope of review, Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), we conclude that plaintiff did not prove the second part of the Silver test. In the particular circumstances of this case, the trial court should have considered the efficacy of a consent order that had been entered in the parties' matrimonial case to prevent future acts of harassment by defendant. Consideration of that evidence, in the context of no prior history of domestic violence by defendant and the isolated nature of the harassing conduct in this instance, leads us to conclude that a domestic violence order was not needed to protect plaintiff against the risk of future harassment.

Much of the evidence at trial was not disputed. The parties were married in 1998. They did not have children. In October 2007, defendant-wife was granted a domestic violence final restraining order against plaintiff-husband. That order remained in effect at the time of trial in this matter. On May 18, 2009, a dual final judgment of divorce was entered incorporating a property settlement agreement (PSA) negotiated through the parties' attorneys. The PSA as executed was prepared in typewritten form, but it also contained several handwritten paragraphs, including paragraph 27 providing that the parties would "not disclose or discuss this case" or "out-of-Court statements, in the parties' Final Restraining Order" except with their attorneys.

On the morning of May 18, 2009, before arriving at the courthouse for the matrimonial case, defendant placed in the mail three letters addressed to persons that were related to or associated with plaintiff. The letters made accusations and gave warnings of plaintiff's alleged violent proclivities. They recounted specific acts of violence that he had allegedly committed against defendant. Included with the letters were photographs depicting defendant's injuries and damage to property allegedly caused by defendant's violent conduct.

One of the persons to whom the letters were sent was a friend of plaintiff. At trial, the friend testified that he knew plaintiff for more than twenty years through their common interest in martial arts, but his acquaintance with defendant was only as plaintiff's wife. He had not seen defendant since early 2007. When he and his wife received the package she mailed, they were shocked and upset because it was "an attempt at character assassination and to change our relationship" with plaintiff. The friend testified that he found defendant's accusations hard to believe, but receipt of the mailing had "strained" his relationship with plaintiff "a bit."

The other two recipients did not testify. Plaintiff testified that one of them was another friend of his for more than thirty years through his martial arts activities, and the third was his sister-in-law, whom defendant had not seen since 2003. Plaintiff testified that he was "upset, physically, mentally disturbed . . . very annoyed, extremely agitated, and alarmed" when he learned about the mailings. He admitted he was not afraid that defendant would do any physical harm to him, since he was a blue belt, sixth degree, in karate. He testified that:

My biggest concern and anxiety and fear that this was — she's threatening me with these packages through third parties, it was obviously intended to me to cause me harm and annoyance and to agitate me, to strike out at me after the divorce was finalized.

. . . .

I was concerned that every potential employer that I was going to deal with, newspapers, she was going to be sending these, what are equivalent of poison pen packages, out to them also.

As an additional basis for his concerns, plaintiff testified that defendant had called him after entry of her October 2007 final restraining order, and she had repeatedly come unannounced to the martial arts facility he attended. He feared that she was purposely trying to cause him to violate the existing restraining order against him so that he would be arrested and charged.

Defendant stipulated at trial that she had mailed the three letters with their enclosures, but she testified that she had done so before she came to court on May 18, 2009 and, thus, she did not intend to violate the non-disclosure provision of the PSA. She said her purpose was to warn persons who might be in a position to prevent harm to children that might come into contact with plaintiff.

Defendant also testified that the contacts alleged by plaintiff after she obtained a restraining order against him were infrequent and for legitimate and necessary purposes. None of them resulted in her actually coming into contact with or speaking to plaintiff. Her few visits to the martial arts facility occurred when plaintiff was not there, and they were for the purpose of dropping off with a mutually agreed-upon person plaintiff's belongings left in the marital home. The one phone call she made to him, leaving a message on his answering machine, was to make arrangements to take a mutual acquaintance to the airport because she could not do so.

The trial court did not find credible defendant's explanation of her purpose in mailing the letters and pictures. The court found that defendant's purpose was "to intervene in [plaintiff's] life." Based on the tone of the letters and the absence of close relationships between defendant and the recipients, the court found that the packages were "meant to arouse and inflame, and . . . to harass [plaintiff]" and that they were "clearly acts of harassment." On appeal, defendant challenges the trial court's findings and conclusions.

In a domestic violence case, the standard of review on appeal is very deferential to the trial court's findings of fact and the conclusions of law based on those findings. In Cesare, supra, 154 N.J. at 413, 416, the Supreme Court placed trust in Family Part judges to assess evidence of domestic violence and the need for a restraining order. Regarding the function of the appellate court, the Court held:

[A]n appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."

[Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).]

Here, the trial judge's findings and credibility determinations, and his conclusion that defendant had a purpose to harass her ex-husband by mailing the letters and other items, are consistent with the evidentiary record and do not offend the interests of justice. See State v. Hoffman, 149 N.J. 564, 577 (1997) ("A finding of purpose to harass may be inferred from the evidence presented.").

We also agree with the trial court that a single alarming communication may in appropriate circumstances constitute an act of domestic violence warranting a restraining order. See Cesare, supra, 154 N.J. at 402. In McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007), we held that the defendant's sending graphic pornographic pictures of plaintiff to her sister and then implying that he would also send them to her son and her employer were egregious acts of harassment that justified entry of a final restraining order, even in the absence of any history of prior domestic violence by the defendant.

On the other hand, the commission of one or more predicate offenses listed in the domestic violence statute, N.J.S.A. 2C:25-19a, does not automatically warrant issuance of a restraining order. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of violence between the plaintiff and defendant including threats, harassment and physical abuse," and on "whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54; see N.J.S.A. 2C:25-29a. The second part of the test set forth in Silver, supra, 387 N.J. Super. at 126, requires that the trial judge assess the plaintiff's need for a final restraining order to protect against immediate danger or future acts of domestic violence. In this case, unlike the facts of McGowan, supra, 391 N.J. Super. 502, there was no evidence of further threats to disclose embarrassing information after the mailings of May 18, 2009.

Here, plaintiff's reaction after he learned of the mailings was to seek a remedy through the matrimonial case. His attorney filed a post-judgment motion on June 24, 2009, seeking a sanction of $25,000 for defendant's alleged violation of paragraph 27 of the PSA. Another Family Part judge heard the motion on September 25, 2009, and denied the requested sanction. On that date, however, according to defendant, the parties entered into an agreement on the record stating: "[I]n the event it is proven by a preponderance of the credible evidence that the Defendant has hereafter violated paragraphs 26 and 27 of the Final Judgment of Divorce, then it is agreed that the Plaintiff is entitled to liquidated damages in the amount of $1,500.00 per violation."¹

Apparently dissatisfied with that result, plaintiff filed a complaint for a domestic violence restraining order on the same date as his motion for post-judgment sanctions was denied, September 25, 2009. He alleged harassment based on the May 18, 2009 mailings and for defendant's conduct preceding that date, such as coming to his place of recreation and leaving a message on his answering machine many months earlier.

Defendant argues that if plaintiff was not satisfied with the result in the matrimonial case, he should have taken an appeal in that action. She argues that plaintiff's delay of more than four months, from May to September, in filing a complaint for a restraining order indicates that defendant posed no threat to plaintiff. Additionally, defendant had made no further mailings or other communications regarding plaintiff after executing the PSA with its non-disclosure provision.

The trial court ruled that evidence of post-judgment proceedings in the matrimonial action was irrelevant and inadmissible. We agree that the order in the matrimonial case was not a bar to plaintiff's request for a domestic violence restraining order. Nevertheless, the entry of an order establishing specific monetary sanctions upon defendant's violation of the non-disclosure provision was relevant to assessing the risk that defendant would again commit acts of harassment such as the mailings. The civil order could adequately deter future harassment when considered in conjunction with the absence of any prior acts of domestic violence by defendant and the minimal contacts between the parties that had occurred since their separation. The fact that defendant had not attempted any similar communications since entry of the final judgment of divorce was also evidence that the mailings were an isolated incident of harassment.

We emphasize that our view of the evidence is tied closely to the specific facts of this case. We do not suggest that a civil restraining order may be routinely presented as an adequate defense of a complaint seeking a domestic violence restraining order. In this case, the trial court described plaintiff's need for a domestic violence restraining order as a very close case. The court made a comparative credibility determination, "by maybe just an ounce," in favor of plaintiff, implying that it did not weigh heavily plaintiff's protestations of interference in his life by defendant. Consideration of the deterrent effect of the matrimonial consent order tips the scales, in our judgment, against plaintiff's current need for protection by means of a domestic violence restraining order, especially in view of the single isolated incident of harassment proven against defendant.²

We conclude that entry of a domestic violence restraining order was inconsistent with the relevant and reasonably credible evidence, see Cesare, supra, 154 N.J. at 412, and not necessary to protect plaintiff against future acts of harassment, see Silver, supra, 387 N.J. Super. at 126.

Reversed.

1 Defendant refers to the agreement as a consent order. We have not been provided a written consent order in the appellate record. It appears that the order was orally issued by the judge in the matrimonial action, but we also have not been provided a transcript of the matrimonial post-judgment proceeding.

2 Defendant has also alleged that the trial court displayed favoritism by referring on the record to plaintiff's attorney by his first name while addressing defense counsel by her last name. First-name familiarity with plaintiff's attorney appears to have had its genesis in joint participation of judge and attorney in a recent Inn of Court, which was mentioned during the trial. The court's several rulings during trial adverse to defendant's positions, together with a final unsatisfactory outcome, may have led defendant and her attorney to question the significance of the judge's acquaintance with adversary counsel. We are confident that the references were inadvertent, but they should not occur.

DV reversed where no purpose to harass H.D. v H.S.

DV reversed where no purpose to harass H.D. v H.S.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2296-09T1

December 16, 2010

Argued November 30, 2010 - Decided

Before Judges Skillman and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-000931-10.

John J. Guidera argued the cause for appellant (Byrnes & Guidera, attorneys; Mr. Guidera, on the brief).

Respondent has not filed a brief.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

Defendant appeals from a final domestic violence restraining order entered on December 15, 2009. We reverse.

Defendant and plaintiff had a dating relationship that ended around the middle of November 2009. The incident in which the trial court found defendant committed an act of domestic violence occurred approximately three weeks later, on December 6, 2009.

On that date, defendant's new girlfriend, Shannon Green, went shopping with her mother at the Foodtown grocery store in Springfield. Plaintiff worked at that same store. While Green was shopping, plaintiff accosted her in an aisle of the store and said that she wanted to know "what was going on" between defendant and Green. Plaintiff told Green that she had heard "you were together with [defendant]" and that Green "had a lot of nerve or gall coming in here to rub it in [plaintiff's] face." Green described plaintiff's tone of voice during this encounter as "vociferous," "angry," and "accusatory."

While plaintiff was directing these comments at Green, Green text-messaged defendant and called him on his cell phone to inform him about what was occurring. Green told defendant she was worried that her encounter with plaintiff was "going to get violent, and she's going to hit me." Green said that because of plaintiff's demeanor, she "felt very threatened."

When defendant received this message from Green, he was in his car only three minutes away from the Foodtown grocery store. Defendant drove quickly to the store and ran inside. Before defendant's arrival, the encounter between plaintiff and Green had ended, the two women had hugged, and Green had left the store.

Defendant went to the deli department where plaintiff worked and started screaming at her. According to plaintiff, defendant said:

[Y]ou're not going to keep doing this shit. You're going to stop this shit. You're going to stop harassing us[.]

Plaintiff then walked back to the manager's office to tell him what was occurring, and defendant followed her. According to plaintiff, defendant had a conversation with her manager, during which defendant "was cursing, and saying I want something done about this girl. She's not going to keep doing this."

Based on this evidence, the trial court found that defendant had committed an act of domestic violence upon plaintiff, specifically harassment, and entered the final domestic violence restraining order from which this appeal has been taken.¹

The predicate act of domestic violence that the trial court found defendant had committed was harassment, in violation of N.J.S.A. 2C:33-4. See N.J.S.A. 2C:25-19(a)(13). N.J.S.A. 2C:33-4 provides in pertinent part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

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;

The form of harassment proscribed by N.J.S.A. 2C:33-4(a) consists of three elements:

(1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and

(3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.

[State v. Hoffman, 149 N.J. 564, 576 (1997).]

Even assuming that defendant's use of the word "shit" in his comments to plaintiff in the Foodtown constituted "offensively coarse" language that satisfied the third element of the offense of harassment under N.J.S.A. 2C:33-4(a), there was no factual basis for a finding that defendant's purpose in making this communication was "to harass" plaintiff. Therefore, the final domestic violence restraining order must be reversed.

Defendant's purpose in entering the Foodtown was not to harass plaintiff but rather to assist his new girlfriend, Green, who, as reported to defendant by Green, was being threatened with physical violence by plaintiff. Moreover, even though the encounter between plaintiff and Green had ended by the time defendant entered the store, defendant's evident purpose in accosting plaintiff in the store was to vent his anger at her and persuade her not to engage in similar conduct toward Green or him in the future. Therefore, the evidence presented at trial was insufficient to support a finding that defendant's purpose in communicating with plaintiff was to harass her. See State v. Duncan, 376 N.J. Super. 253, 262-69 (App. Div. 2005).

Because the evidence was insufficient to support a finding that defendant committed the alleged predicate act of harassment on December 6, 2009, there is no need to address the evidence of an alleged history of prior acts of domestic violence.

Accordingly, the final domestic violence retraining order entered against defendant is reversed.

1 During the pendency of the appeal, plaintiff applied to the trial court to vacate this order, and on March 11, 2010, the court entered an order granting this application. Despite the vacation of the domestic violence restraining order, defendant has continued to pursue this appeal because, according to defendant, "the fact that [of] a finding [of domestic violence] on his record will cause him to forfeit his entire antique firearm collection valued at more than $10,000.00, could disqualify him from owning weapons, having firearm permits, obtaining employment in certain types of positions, [and] performing sensitive jobs for Governmental agencies including Homeland Security[.]"

DV granted in favor of 88 year old mom against son M.C v. J.J.C., JR., DOCKET NO. A-1759-09T3

DV granted in favor of 88 year old mom against son

M.C v. J.J.C., JR., DOCKET NO. A-1759-09T3

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Defendant-Appellant. RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

___________________________________

December 16, 2010

Submitted November 9, 2010 - Decided

Before Judges Parrillo, Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0623-10.

Janet L. Porro, attorney for appellant.

Joshua G. Curtis, attorney for respondent.

PER CURIAM

Defendant, J.J.C., Jr., appeals from the Family Part's November 17, 2009 final restraining order (FRO) in favor of plaintiff, M.C., issued under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff is the eighty-eight year old mother of defendant, who is fifty-two years old. Prior to the FRO, they resided in the same family home in Lodi, where defendant's sister, L.C., also lived until August 13, 2009 when defendant obtained an FRO against her. In December 2008, defendant's fiancé, Y.L., moved into the residence and together with defendant occupied an upstairs apartment in the home. Plaintiff continues to reside in the downstairs basement apartment, equipped with a kitchen, living and sleeping areas.

Plaintiff suffers from osteoporosis, arthritis and other medical conditions. After her husband's death, defendant became plaintiff's primary caretaker and exercised her power of attorney. Defendant maintains that he has paid all of the household bills, including real estate taxes, insurance and utilities, along with plaintiff's unreimbursed medical expenses. He claims to be the joint owner with plaintiff of a certificate of deposit (CD) account.

The events that precipitated the FRO occurred around 2:00 p.m. on August 31, 2009. Both plaintiff and defendant agree they had a verbal argument over plaintiff's finances and a plumbing bill due for repairs at their home. This much is undisputed. What followed thereafter is the subject of vastly conflicting accounts.

According to defendant, because plaintiff did not write checks, he stored about $5,000 in cash in her closet for use in case of emergencies. When he asked for money to pay the plumbing bill, plaintiff refused and also declined to produce the CD bankbook. Plaintiff then became "irate" and "upset" and threw her cane at him. She then began yelling about L.C. being forced out of the home as she started to walk without her cane towards the door leading outside. At that point, her foot got caught in the door and she began to fall backwards. Defendant caught her and sat her on the floor. He then freed plaintiff's leg, picked her up and carried her to her bed.

Plaintiff offered a substantially different account. She claimed that when she refused to produce the cash or CD bankbook, defendant began rummaging through her room, turning over her mattress, smashing her door frame and berating her with abusive names and threats of removal to a nursing home. She became alarmed and headed for the door leading outside her home to call for help. As she was exiting, defendant ran up to her from behind, grabbed her by the waist with one arm, placed his other hand over her mouth and nose to muffle her screams, and forcibly dragged her backwards, away from the door and back into the house where he carried her onto her bed and threw her cane and slippers at her. In the process, defendant scratched plaintiff's nose.

Plaintiff did not call the police because of defendant's threats. However, that evening, plaintiff telephoned her niece D.M., who then informed L.C. of the incident. As a result, the next day, L.C. reported the incident to the Lodi Police. Officer Dominick Miller responded to plaintiff's home, where he witnessed an "obvious" injury to plaintiff's arm and nose. Plaintiff then accompanied Officer Miller to the police station where another officer photographed the bruises on her face and right arm.

Four days later, on September 4, 2009, L.C. and D.M. took plaintiff to her doctor for an examination of her injuries. Following the doctor's visit, the two took additional photographs of plaintiff's injuries, which showed bruising on her left arm that had been largely obscured in the police photos, and her thigh, which supposedly was covered by her dress when the police earlier photographed her. D.M. also recovered part of the broken door's locking mechanism and a wooden shard from the door frame.

Defendant denied plaintiff's account, claiming that the entire incident was an accident and that plaintiff fabricated her version to remove defendant from the family home and enable L.C. to return. Defendant actually suggested that plaintiff's injuries were self-inflicted, with the assistance of L.C. and D.M., at some point after the police photos were taken on September 1, 2009, but before D.M. took the additional photographs on September 4, 2009. In fact, plaintiff's expert, Dr. Arthur Tiger, opined that the bruising depicted in the September 4th photographs appeared to be much greater than in those revealed in the photographs taken on September 1, 2009 and that, as a result, the injuries were probably not caused by the same act.

At the close of evidence, the court rejected defendant's "conspiracy" theory as "preposterous,"¹ discredited defendant's account as "suspect,"² and found both plaintiff and D.M. to be credible witnesses.³ Having determined that the matter "falls squarely on credibility because there is no third party that's witnessed" the incident, the court found that defendant's actions qualified as predicate crimes of simple assault, N.J.S.A. 2C:12-1a, and harassment, N.J.S.A. 2C:33-4b, and were sufficiently egregious to warrant the issuance of an FRO to prevent further abuse under N.J.S.A. 2C:25-29(b).

On appeal, defendant raises the following issues:

I. DUE TO THE COURT'S FAILURE TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER SHOULD BE REVERSED AND REMANDED.

A. THE COURT DID NOT MAKE ANY FINDINGS OF FACT AS TO

WHETHER OR NOT THE DEFENDANT ACTED PURPOSELY, KNOWINGLY OR RECKLESSLY, THUS FAILING TO SATISFY THE REQUISITE ELEMENTS OF SIMPLE ASSAULT.

B. THE COURT FAILED TO MAKE ANY FINDINGS OF FACT AS

TO WHETHER OR NOT THE DEFENDANT'S ALLEGED CONDUCT SATISFIED THE REQUISITE ELEMENTS OF HARASSMENT.

II. THE TRIAL COURT'S FINDING THAT THE DEFENDANT COMMITTED AN ACT OF DOMESTIC VIOLENCE IS UNSUPPORTED BY THE EVIDENCE.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add, however, the following comments.

The Legislature enacted the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Indeed, the Act's primary focus is to provide immediate protection to the victim. Ibid. A plaintiff seeking relief under the Act must first prove that a defendant has committed an act of domestic violence as defined by N.J.S.A. 2C:25-19(a). N.J.S.A. 2C:25-29(a); Cesare v. Cesare, 154 N.J. 394, 400 (1998). Once the plaintiff proves that the defendant committed one of the predicate acts, the court must then determine whether issuance of an FRO is necessary, based upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) to protect the victim from further abuse. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). While we have previously noted that a single commission of an enumerated predicate act of domestic violence does not automatically mandate the entry of a restraining order, we have also held that one sufficiently egregious act of domestic violence can indeed warrant the issuance of an FRO regardless of whether there is a history of violence between the parties. McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007) (citing Cesare, supra, 154 N.J. at 401-02).

Here, the trial judge, after carefully assessing the veracity of the conflicting versions proffered and crediting plaintiff's account, determined that defendant committed the predicate acts of assault and harassment upon plaintiff, which were, in themselves, sufficiently egregious to warrant plaintiff's protection from further acts of domestic violence by the issuance of an FRO. Defining assault as an "attempt[] to cause or purposely, knowingly or recklessly cause[] bodily injury to another," N.J.S.A. 2C:12-1a(1), the court concluded that if it "believe[s defendant] inflicted the injuries and the black and blues came from [defendant], then . . . certainly assault is statutorily met." The court also determined that these same acts, committed with a purpose to harass, also satisfied the harassment criteria contained in N.J.S.A. 2C:33-4b.

In a non-jury case, findings of fact by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility[,]'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), because the trial court "hears the case, sees and observes the witnesses, hears them testify, and has better opportunity to judge their credibility than the reviewing court." Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). Thus, the trial court maintains "a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988); State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Because credibility is for the factfinder to determine, Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 495 (1956), an appellate court will not disturb fact findings on appeal unless the trial judge's findings are "'so wholly insupportable as to result in a denial of justice.'" Rova Farms Resorts, supra, 65 N.J. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b. 33 N.J. 78 (1960)). This is especially true in family courts, which have "special jurisdiction and expertise in family matters" that support a family court's ability to "'successfully balance the interests of society in deterring the evils of domestic violence and caring for families.'" Cesare, supra, 154 N.J. at 413 (quoting Brennan v. Orban, 145 N.J. 282, 304-05 (1996)). Moreover, an appellate court may also conclude that the factual basis for a decision is implicit in the trial court's ruling. Locurto, supra, 157 N.J. at 474.

We discern no reason to disturb the factual findings or legal conclusions reached by the trial court. Its factual findings were reached based upon "sufficient credible evidence present in the record," Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting Johnson, supra, 42 N.J. at 162), and its legal conclusions are well supported in law. To sum, plaintiff's account of the August 31, 2009 incident was deemed credible by the trial judge and was also corroborated by the physical evidence. As clearly demonstrated by the latter, plaintiff suffered bodily injury within the meaning of N.J.S.A. 2C:11-1a, knowingly caused by defendant, so as to constitute an assault under N.J.S.A. 2C:12-1a. See N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997). The same evidence also demonstrated that plaintiff was subjected "to striking . . . shoving, or other offensive touching" by defendant within the meaning of the harassment statute. N.J.S.A. 2C:33-4b. Moreover, our review of the record reveals substantial evidence from which to infer from the very nature of the conduct and the accompanying threats of future violence that defendant acted with the requisite purpose to harass his mother. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. McDougald, 120 N.J. 523, 566-57 (1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995); State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978). And finally, we concur in the trial court's conclusion that the single episode of domestic violence was sufficiently egregious in itself to justify issuance of an FRO to protect plaintiff against any further abuse by defendant.

Affirmed.

1 The trial judge said in this regard:

If I were to believe that that black and blue that's in the black and white photos, which is P-1, was inflicted by some other means, that person would have to use an implement with such precision to only cause black and blue and not break the arm of a lady who the defendant admits has osteoporosis, has arthritis, to get that black and blue. Now I don’t buy that.

2 Specifically, the court reasoned in part:

[Defendant is] so concerned about his mother - he picks up after her, he knows every medication. She falls backwards and he doesn’t even call for an ambulance. He doesn’t call for assistance. He admits she's fragile, doesn't want to [hurt] her. She's fallen. But [he] picks her up and puts her in bed, not near the bed, outside he claims, if you believe his testimony. [T]he argument is downstairs and she's outside. And he doesn't even call for help. That's a problem with his credibility. . . .

3 On this score, the court concluded:

[Plaintiff,] I find her to be credible. I know there's some inconsistencies in, in maybe her memory recollection to some degree. But I watched her demeanor. I watched her . . . when she interacted when her attorney asked her questions. I watched her on cross-examination. She pretty much was even throughout the entire testimony that she gave on both sides.

. . . .

[D.M.] was a very credible witness. She has no - I never felt she had another motive. She has no interest in this. She, she maybe makes an error in judgment in not calling the police.