SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
M.C., Plaintiff-Respondent, v. P.R., Defendant-Appellant.
Submitted May 31, 2011 - Decided June 14, 2011
Before Judges Reisner and Sabatino.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-1847-10.
Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone and Brett E.J. Gorman, on the brief).
Respondent has not filed a brief.
PER CURIAM
In this unopposed appeal, defendant P.R. contests the trial court's issuance of a final restraining order ("FRO") against him in favor of plaintiff M.C., under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). Defendant's primary argument is that the trial court erred in disallowing three fact witnesses who were apparently present in the courtroom and who defendant wished to call at the FRO hearing.
For the reasons that follow, we affirm the trial judge's exclusion of testimony from two of the proffered defense witnesses because they would not have added relevant testimony that could have materially affected the trial court's assessment of the proofs. However, we agree with defendant that he should have been allowed to present testimony from the third proposed witness, Victor Montalvo, attesting to facts about plaintiff's own conduct that could have materially affected the court's analysis of her asserted fear and her actual need for restraints. Consequently, the matter is remanded to the trial court to permit defendant to present testimony from Montalvo, and any relevant proofs that plaintiff may wish to present in rebuttal.
I.
A.
This matter involves cross-complaints for restraining orders reciprocally brought under the Act by plaintiff (in Docket No. FV-01-1847-10), and by defendant (in Docket No. FV-01-1850-10). In each instance, the trial court granted the respective complainant a temporary restraining order ("TRO"). The cross-complaints were tried together in one hearing. Although defendant attempted at the hearing to disavow the fact that the parties formerly were in a dating relationship with one another, the trial judge correctly noted that the TRO applications of each party had asserted the existence of such a prior dating relationship, thereby providing the court with jurisdiction to consider the parties' respective complaints. See N.J.S.A. 2C:25-19(d) (defining a "victim of domestic violence" under the Act to include "a person with whom the victim has had a dating relationship"); see also N.J.R.E. 803(b)(1) (allowing the evidential use of prior statements made by a party-opponent).
At the conclusion of the hearing, the judge granted plaintiff's request for an FRO, but denied defendant's own FRO application. Defendant has only appealed the entry of the FRO against him in Docket No. FV-01-1847-10. He has not appealed the denial of the FRO that he had sought under Docket No. FV-01-1850-10.
Both parties were unrepresented at the hearing. Plaintiff testified in her own behalf. She also presented testimony from her father. Defendant likewise testified in his own behalf. He also presented testimony from two of his acquaintances, Laura Lavastida and Rosa Ramos. For reasons that we will describe in more detail, the trial judge did not accept Lavastida's testimony in his analysis of the proofs. In addition, the judge halted the testimony of Ramos, after she acknowledged that she had not been present with the parties when the pivotal events at issue occurred. As we have already noted and will elaborate upon later in this opinion, defendant was not permitted to call any other witnesses.
B.
Because we have concluded that the record is incomplete, we do not recite the facts definitively or comprehensively. The testimony of the parties diverged substantially about the critical events. With those constraints in mind, we summarize the proofs that have been adduced so far.
The relevant events that gave rise to the parties' cross-applications apparently began on June 10, 2010. Although plaintiff's own narrative began at a later point in time that day, defendant testified that the pertinent events began unfolding shortly after noon, when plaintiff allegedly telephoned him and expressed a desire to meet. Although plaintiff initially denied calling or sending any text messages to defendant around that time, defendant produced his cellular phone as evidence, displaying a text message sent by plaintiff at 12:50 P.M. on that date, reading "I need you ASAP. I just beat [t]he [sic] s[**]t out of my kids when [Allison]1 jumped me." The inference that defendant was attempting to establish from the text message was that plaintiff had suffered facial injuries during an altercation with her daughter Allison, and not during a fight later that day with him. Another text message plaintiff sent that day to defendant, which was also displayed to the court on defendant's cell phone, read in part, "And my daughter hits me."
In any event, the two parties allegedly agreed to meet for lunch on June 10 at an establishment named Gourmet Pizza.2 Later the same day, at some time between 7:00 and 11:00 P.M., defendant was driving his vehicle, with plaintiff as a passenger. They had been at defendant's gym and had gotten into a dispute there. During the ride home, the dispute escalated. The parties agree that plaintiff got out of the vehicle while they were still en route to her residence.
According to plaintiff's testimony, she became afraid because defendant was acting "aggravated and agitated." She consequently asked him to let her out of the vehicle when they stopped at a traffic light.
Defendant's competing version was that, as their argument escalated about the status of their relationship, plaintiff suddenly got out of his vehicle while it was still moving. According to defendant, after plaintiff left the vehicle, he was unsure where she was, and he could not stop because he had to keep moving with the flow of traffic.
After the plaintiff got out of his vehicle, defendant contacted plaintiff's fifteen-year-old daughter, Allison, by telephone. He then picked Allison up at plaintiff's residence. He drove back to the vicinity where plaintiff had left his vehicle, with Allison now a passenger. Upon locating plaintiff there, defendant and Allison were able to convince her to reenter the vehicle. Plaintiff entered the front seat, while her daughter rode in the back. Defendant then drove the trio to plaintiff's residence.
According to plaintiff, upon their arrival at her residence, she asked to get out of the vehicle. However, defendant refused to let her out, using his control of the automatic master door locks to keep her inside. Defendant testified, on the other hand, that he asked plaintiff to leave the vehicle once they arrived at her residence, but that she refused to do so.
While the parties and Allison remained in defendant's vehicle, another vehicle pulled up to the residence. The vehicle was driven by a friend of plaintiff named Mary Villez.3 Villez apparently was dropping off a friend of her son, another daughter of plaintiff.
Defendant got out of his vehicle and approached Villez's vehicle. At that point, defendant and Villez got into a dispute. Villez got out of her own vehicle. She walked up to defendant's vehicle, where she stood near the passenger-side door while plaintiff was seated. Plaintiff testified that she then saw defendant push Villez to the ground, and that he punched and kicked her.
In his own testimony, defendant denied that he had punched or kicked Villez. Instead, he stated that he was concerned that Villez was going to break his vehicle's electric window, so he forced his way in between her and the vehicle. At that point, Villez allegedly threw a punch at him. Defendant further recounted that plaintiff and Villez had threatened him, warning that they were "gonna blow [his] head off." Villez then allegedly shouted for plaintiff to "grab the keys" to the vehicle.
Defendant separated from Villez. He then entered his vehicle, again on the driver's side. At that point, a struggle for the vehicle's keys ensued between plaintiff and defendant. During their struggle, plaintiff suffered what she described as a "deep cut" on her hand. She further testified that defendant punched her in the face.
Defendant, on the other hand, denied that he punched plaintiff. He also contended that the cut on plaintiff's hand had been caused inadvertently, as the two parties had struggled for the keys.
Defendant then drove plaintiff to the house of plaintiff's parents, a distance of approximately three miles. When they arrived at the parents' residence, plaintiff got out of the vehicle.
Meanwhile, the police were called, apparently by Villez's son. The police located defendant's vehicle while it was en route to the parents' residence. A patrol car thereafter followed defendant's vehicle until the parties arrived at the parents' residence. Police officers then got out of the patrol car and arrested defendant.
Plaintiff presented photographs at the trial stored on her cell phone, showing her injuries to her hand and her face. Plaintiff's father testified, and he corroborated his observations of those injuries. According to the father, the blood on his daughter's hands was "fresh" when she arrived at his house in defendant's vehicle. The father also testified that the police arrested defendant after "some resisting on [defendant's] part."
According to plaintiff's narrative, on the next morning, June 11, she called defendant in order to arrange for the return of some important work-related materials that had been left in his vehicle. She testified that when he received her call, defendant threatened to shoot her, her mother, and Villez with a shotgun.
Defendant presented a markedly different version of the events of June 11. According to defendant, on that day, plaintiff vandalized his vehicle, writing on the vehicle's window "[P.R.] is a male whore" and his telephone number. Defendant claimed this was the second time that such a vandalizing incident had taken place in recent weeks.
C.
After completing his own testimony, defendant attempted to present several additional witnesses in his defense, and also in support of his cross-complaint for an FRO. When he first indicated to the trial judge his intention to do so, the judge requested defendant to give "a proffer as to what [each of] your witness[es] is going to say." The judge further inquired "[w]ere they [the witnesses] there on this particular day?" That prompted the following exchange between the judge and defendant:
[DEFENDANT]: Were they [there] on which day? I have several things there. When she [plaintiff] marked my windows they were there.
THE COURT: On June 10th, June 11th. That's the day that you say that these happened. Did they see her mark your windows or did they just see --
[DEFENDANT]: No, she told me she marked them.
THE COURT: The I [sic] don't need a witness. If she told you then I don't need a witness. Were they there on this, I've heard a long story about what happened on this day. Were they there at that time?
[DEFENDANT]: No, they were there when she [plaintiff] called me and threatened me. I heard her on my speaker phone saying that she was gonna blow my head off and so was Mary Velasquez.
THE COURT: Every one of these witnesses? I only need to hear from one.
[DEFENDANT]: Your Honor, I'm, they were here. You don't --
THE COURT: I'll hear from one witness, but I don't need to hear from five or six witnesses telling me the same thing.
[DEFENDANT]: I don't want to waste the Court's time but I --
THE COURT: Well, you will waste the, you will waste the [c]ourt's time if you present five or six witnesses telling me the same thing. I only need to hear it once.
[DEFENDANT]: Okay, Your Honor. I'm going to present a witness and --
THE COURT: Call your witness.
[DEFENDANT]: She can probably tell you better than anybody.
Defendant thereafter presented the testimony of Lavastida, who is an acquaintance of his and apparently a member of his church. Lavastida testified that plaintiff had called or text-messaged defendant "more than 50 times in the period of an hour" while Lavastida was in his presence. However, the judge did not allow Lavastida to elaborate further about those text messages because defendant had not included specific allegations about them in his cross-complaint.
Lavastida then proceeded to testify about allegedly overhearing plaintiff on June 12 (the day after she had procured the TRO against defendant) threaten to "blow [defendant's] head off" in a telephone conversation that was being amplified through a speaker phone. Lavastida further testified that she overheard plaintiff, in that same call, tell defendant that "she wanted three to four grand to pay three months rent and to go back to Florida," adding that "if you [defendant] marry me [plaintiff][,] I will drop all the charges against you."
The judge found Lavastida's testimony deficient because she was admittedly reading from notes that she had made a few days before the hearing. After the judge instructed Lavastida to put away the notes, Lavastida was unable on cross-examination to remember significant facts.
The testimony of Ramos, another acquaintance of defendant, was terminated by the judge, after it became apparent that Ramos was not present with the parties when the operative events occurred and that she lacked any first-hand information on those events. Defendant indicated to the court that he expected Ramos would testify that plaintiff was "never [his] girlfriend[,]" but the judge admonished defendant that he had admitted a dating relationship in his own application for restraints. Consequently, Ramos was excused from the witness stand.
As Ramos stepped down, the judge announced, without making any inquiry of defendant, that "there are no further witnesses." In actuality, defendant had three more witnesses present who were prepared to testify. However, defendant made no further effort to reopen the case. He did not supply the judge with a specific proffer as to what each of those three witnesses were expected to say.
D.
After affording each party a chance to provide closing arguments, the judge rendered his oral decision. As noted, he granted an FRO to plaintiff and denied an FRO to defendant. The judge canvassed the proofs that he had heard. On the whole, the judge essentially found that plaintiff's proofs, particularly the testimony from her father, were credible. The judge concluded that defendant had indeed restrained plaintiff in his vehicle against her will, that he had punched her in the face, and that he had cut her thumb. Based upon these factual findings, the judge stated that he was "satisfied that [defendant's] actions that day do rise to the level of assault and harassment and warrant the entry of a final restraining order against [defendant] in favor of [plaintiff]."
By contrast, the judge was unpersuaded by defendant's claim that plaintiff herself had engaged in harassment or other actionable forms of domestic violence. The judge stated that he could "find no credible evidence to indicate that [plaintiff] has done anything of a domestic violence nature that would warrant the entry of a restraining order against her." Consequently, the judge dismissed defendant's cross-complaint and dissolved the TRO that had been preliminarily issued in his favor.
The court entered a corresponding final judgment dated June 24, 2010, detailing the scope of the restraints placed upon defendant under the FRO and imposing the minimum mandatory fine.
II.
Defendant now appeals the entry of the FRO issued against him. He raises two arguments: (1) the trial judge unfairly truncated the proofs that he wanted to present at trial; and (2) plaintiff's conduct does not rise to a level of severity that comprises domestic violence under the Act.4
In considering defendant's appeal, we remain cognizant that the Act is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18; see also Cesare v. Cesare, 154 N.J. 394, 399 (1998). Trial judges hearing FRO applications essentially must consider two critical questions: (1) Has defendant engaged in conduct that constitutes one of the offenses enumerated under the Act in N.J.S.A. 2C:25-19(a)?; and (2) Are restraints upon defendant warranted in light of that conduct, if it is proven? The statute directs judges, when they consider these questions, to take into account: (1) the previous history of any domestic violence between the parties; (2) any "immediate danger to person or property;" (3) the parties' financial circumstances; (4) the "best interests" of the alleged victim and any child; (5) on issues of custody and parenting time, "the protection of the victim's safety;" and (6) whether a verifiable order of protection was issued by another jurisdiction. See N.J.S.A. 2C:25-29(a)(1). The complainant's factual allegations must be proven by a preponderance of the evidence. N.J.S.A. 2C:25-29(a).
When assessing the surrounding circumstances and a complainant's actual need for restraints, or the need for the continuation of restraints, the trial court must evaluate whether the complainant is objectively in fear of the defendant, and "whether there is a real danger of domestic violence recurring." Stevenson v. Stevenson, 314 N.J. Super. 350, 364 (Ch. Div. 1998) (discussing these concepts in the context of a defendant's application to dissolve previously-issued restraints). In that vein, our courts have recognized that the Act protects victims, not only from physical harm, but also from mental or emotional harm. Carfagno v. Carfagno, 288 N.J. Super. 424, 436 (Ch. Div. 1995). A complainant's fear, or lack of fear, of a defendant inflicting such physical or mental harm in the future is "important to consider." Ibid.
As a procedural matter, we recognize the delicate balance that trial judges hearing domestic violence cases must strive to achieve: on the one hand, providing expeditious and ready access to the courts for true victims of domestic violence, and, on the other hand, affording defendants in such cases with a fair opportunity to contest the allegations. This task becomes even more difficult where, as here, both parties are self-represented, and thus lack the courtroom skills of attorneys and a mastery of the Rules of Evidence.
In Franklin v. Sloskey, 385 N.J. Super. 534, 543-44 (App. Div. 2006), we underscored the importance of assuring due process to litigants in domestic violence matters, providing such procedural safeguards as the right to cross-examine witnesses. We further noted in Franklin that "in a pro se trial a judge often has to focus the testimony and take over the questioning of the parties and witnesses[,]" provided that the court does so in "an orderly and predictable fashion." Id. at 543.
The present appeal is distinguishable from Franklin in that the trial judge here, to his credit, took pains to afford both plaintiff and defendant an opportunity to cross-examine their respective witnesses. When the witnesses on the stand or the questions posed by the litigants strayed into irrelevant topics, the judge appropriately endeavored to channel their testimony back into germane subjects, in the "orderly and predictable fashion" that is called for under Franklin. The judge also invited closing arguments from the parties.
In addition, we are satisfied that the trial judge appropriately limited the testimony of Ramos, who apparently had no first-hand knowledge of relevant facts. Instead, the examination of Ramos drifted into irrelevant matters such as plaintiff's marital status. See N.J.R.E. 402 (requiring testimony to be relevant) and N.J.R.E. 602 (requiring testimony of non-expert witnesses to be based upon personal knowledge). The judge also had reasonable grounds for disregarding the testimony of Lavastida because of her admitted lack of independent recollection and her reliance upon non-contemporaneous notes that did not satisfy the criteria for admissibility as recorded recollections under N.J.R.E. 803 (c)(5).
Defendant argues that the court erred in totally excluding his three additional witnesses who, unlike Lavastida and Ramos, he was not given a chance to call to the witness stand. In support of his proffer for those witnesses, defendant has tendered, in his appendix on appeal, a signed written statement from each of them. Although we ordinarily would be disinclined to consider such post-hearing proffers because they were not first presented to the trial court, we have considered them in light of the unique circumstances of this case and the interests of justice. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234-35 (1973).
Upon reviewing the written proffers, we are satisfied that two of the proposed defense witnesses Karl Burrows and Janette Burrows would not have provided testimony that could have materially affected the trial court's overall assessment of the proofs. We need not detail the substance of the factual assertions of Mr. and Mrs. Burrows, except to note that they describe events that have little, if any, bearing on this case, particularly since defendant has not appealed the denial of the FRO that he had affirmatively sought. Their proposed testimony largely relates to events at other locations, irrelevant matters within defendant's church, and their own communications with defendant. Their proposed testimony, even if it is arguably of some relevance to this case, is so remote and attenuated that we discern no need for the FRO hearing to be reopened to adduce their testimony. Cf. N.J.R.E. 403 (giving courts the discretion to exclude proof where its probative value is substantially outweighed by other factors).
We reach a different conclusion, however, respecting the trial court's exclusion of the proposed testimony of Montalvo. Montalvo apparently is a friend of defendant's who has participated in body-building competitions with him. One of those competitions occurred on June 12, 2010, two days after the June 10, 2010 alleged assault of plaintiff and one day after plaintiff had procured a TRO against defendant. According to Montalvo's written statement, at the June 12 competition, he witnessed defendant receive a telephone call from plaintiff and place the call on a speaker phone. Montalvo then overheard plaintiff tell defendant that she was going to "have him locked up," continuing to attempt to speak to him even after he protested that she had a restraining order and he thus was not permitted to speak with her.
Montalvo's written statement further describes an incident where he was present with defendant at a local mall, when they both saw plaintiff. According to Montalvo, plaintiff persisted in trying to speak with defendant at the mall even though he made clear he did not want to speak with her. Montalvo recalled that between ten and twenty minutes after this encounter at the mall, plaintiff called defendant on his cell phone, and defendant again activated his speaker phone. Montalvo then heard plaintiff state, "you ought to check your car because I think someone did something to it." When Montalvo got outside, he observed that someone had written on defendant's truck, in pink lipstick, that defendant is a "male whore," along with defendant's telephone number.5
If Montalvo testifies in accordance with his written statement, and, after being subjected to cross-examination, the judge finds his testimony credible, it might be established that he has personal knowledge of conduct by plaintiff that might have substantiated defendant's contention that plaintiff was improperly attempting to use a restraining order in this case as, in effect, a sword rather than as a shield. Cf. State v. Hoffman, 149 N.J. 564, 586 (1997) (noting the court's role in assuring that the Act is not improperly used as a sword rather than as a shield legitimately need for protection). His testimony could conceivably rebut plaintiff's claims that she needed the protection of the court, that she was truly in fear of defendant, and was in the sort of "immediate danger" contemplated under N.J.S.A. 2C:25-29(a)(2). Although Montalvo's proffered testimony, in some respects, would appear to overlap with portions of that of defendant himself, Montalvo's corroboration of defendant's account could have had probative significance, much as the testimony of plaintiff's father was admitted to independently substantiate the testimony of plaintiff herself concerning the alleged assault.
The trial judge did not have a chance to consider the potential import of Montalvo's testimony because he terminated the hearing pre-emptively, immediately after Ramos testified. We appreciate the practical difficulties facing the trial judge in this emotionally-charged case involving two self-represented litigants, but we are not confident that Montalvo's testimony would have been entirely irrelevant and inconsequential. Although Montalvo's testimony might not disprove that defendant struck plaintiff on June 10 (conduct that we certainly do not condone and which in itself could subject defendant to criminal and civil liability), the testimony could undercut plaintiff's claims that she was thereafter so fearful of defendant that she needed judicial restraints preventing him from having any further contact with her.
We therefore remand this matter to reopen the FRO hearing, for the limited purpose of presenting Montalvo's testimony and, in fairness, any relevant proof by plaintiff to rebut that testimony. Following the completion of such evidentiary presentations, the trial court should reexamine the record anew and determine, once again, whether an FRO in favor of plaintiff is warranted in light of the proofs as a whole. In the meantime, the restraints under the FRO shall remain in place, pending the completion of the remand hearing.6
Affirmed in part and remanded in part, consistent with this opinion. We do not retain jurisdiction.
1 We use a fictitious name for this daughter.
2 Defendant apparently contends that during that lunch, plaintiff showed him her facial injuries from her earlier fight with her daughter, although he only raised that point in cross-examining plaintiff and did not testify about that contention.
3 This individual is primarily referred to as "Mary Villez" in the trial transcript, but is also variously referred to as "Mary Vasquez" and as "Mary Velasquez." She is also referred to as "Mary Vazquez" in defendant's brief on appeal. We shall use the "Villez" spelling in this opinion.
4 Again, we emphasize that defendant has not appealed the trial court's dismissal of his own cross-complaint.
5 Montalvo does not clarify whether this incident took place before or after the TRO was issued in plaintiff's favor.
6 Our conclusion that the record must be reopened makes it premature for us to reach defendant's argument that the evidence is insufficient to support the entry of an FRO under the statute.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.