DV reversed where court permitted testimony of acts not set forth in Complaint J.D. v. M.D.F.

DV reversed where court permitted testimony of acts not set forth in Complaint

J.D. v. M.D.F. (A-115-09; 065499)

7-28-11

In this domestic violence matter, the trial court failed to sufficiently articulate its findings and conclusions and the record contains insufficient evidence to sustain the determination to enter a Final Restraining Order. The matter was remanded to the trial court for a re-hearing to protect M.D.F.’s due process rights and to permit the trial court to evaluate the testimony and the evidence.

1. Under the criminal statute addressing harassment, N.J.S.A. 2C:33-4, subsection a. requires proof of a single communication that was made anonymously, at an extremely inconvenient hour, or in a coarse or offensive language, for the purpose to harass and in a manner likely to cause annoyance or alarm. Subsection c. requires proof of a course of alarming conduct or repeatedly committed acts with the purpose of alarming or seriously annoying the victim. Distinguishing between acts that constitute harassment for purposes of domestic violence and those that are ordinary domestic contretemps can be difficult. Such a determination may depend on the second inquiry required for complaints under the Act.

Upon a finding by a preponderance of the evidence of a commission of a predicate act, the second inquiry is whether a restraining order is necessary to protect the victim from immediate danger or to prevent further abuse. Concluding that a plaintiff has described acts that qualify as harassment and omitting this second inquiry opens the door to abuse of the Act’s purposes.

2. Due process requires that a party in a judicial hearing receive notice defining the issues and an opportunity to prepare. It forbids the trial court from converting a hearing on one act of domestic violence into a hearing on other acts that are not alleged in the complaint. Trial courts should use the allegations in the complaint to guide their questions, and avoid inducing plaintiffs to abandon that history in favor of new accusations.

Although the Act instructs courts to consider the parties’ history of domestic violence, if a trial court allows the history contained in the complaint to be expanded, it has permitted an amendment to the complaint and must proceed accordingly. Courts should liberally grant an adjournment that is based on an expansion of the facts that form the heart of the complaint. During the adjournment, courts can protect the plaintiff by continuing the temporary restraints. Here, defendant’s suggestion that he was unprepared to defend himself against the new allegations was sufficient to raise the due process question. Additionally, M.D.F. sought to demonstrate though his questioning of R.T. that he did not intend harassment because he never stopped his car and drove away as soon as he was detected. The trial court’s decision to deny M.D.F. the opportunity to cross-examine R.T. violated due process.

3. Not all offensive or bothersome behavior constitutes harassment. Here, the trial court did not identify which subsection of the harassment statute it was applying. The evidence is not sufficient to support a finding under subsection a. because merely being outside of the home in the morning hours is not harassment and J.D. was unaware he was outside until R.T. alerted her, after which he beat a hasty retreat.

With regard to subsection c., requiring a course of alarming conduct, the court did not articulate precise findings of fact and conclusions of law and did not explain what it was in the series of past incidents that led it to conclude that M.D.F.’s purpose when he engaged in late-night photography was to harass J.D. Although the trial court focused on one of the earlier incidents, it did not explain how that event demonstrated that M.D.F. acted with the purpose to harass J.D. when he went to take photographs. Although a purpose to harass can be inferred from a history between the parties, that finding must be supported by evidence that the actor’s conscious object was to alarm or annoy. The trial court also should have considered the implications that M.D.F. was preparing a motion for a custody change based on J.D.’s cohabitation, and that the motion in fact was filed within hours of the incident.

3. Finally, the record does not include the necessary analysis of the “second inquiry,” and thus lacks the required consideration of whether entry of restraints was necessary to protect the victim from harm. Overlooking that important step in the analysis posed the risk of unfairness and error.