DV reversed where court would not permit defendant to testidy re acts a0608-14W.S.,
Plaintiff-Respondent,
v.
D.C.F.,
Defendant-Appellant.
__________________________________________
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Submitted November 10, 2015 – Decided
Before Judges St. John and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County, Docket No. FV-15-000204-15.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
PER CURIAM
Defendant,
D.C.F.,[1]
appeals from a final restraining order (FRO) entered by the Family Part on
August 12, 2014, pursuant to the New Jersey Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35. We reverse and remand.
I.
We
derive the following facts and procedural history from the record. On August
12, 2014, the parties appeared in the Family Part for a hearing on the
complaint filed by plaintiff requesting entry of a FRO against her ex-husband,
the defendant. Neither party was represented by counsel.
The
hearing commenced with the testimony of plaintiff, which was provided in
response to questioning by the trial court.
On a particular evening,[2]
plaintiff heard her son, K.F., have a "phone altercation" with his
father, defendant, D.C.F. After the call ended, K.F. advised plaintiff that
defendant had sent K.F. a text message calling K.F. a "liar."
Plaintiff explained that K.F.'s emotional state was fragile because he had
recently completed an eighty day inpatient substance abuse rehabilitation
program which he had entered after "nearly dying."
According
to plaintiff, on the morning following K.F.'s phone altercation with defendant,
he called her on the telephone, but she did not answer. Plaintiff immediately
sent a text message to defendant advising that she would have K.F. call him.
Within one minute of sending the text, plaintiff's home doorbell rang, and defendant
was standing outside of the door.
Plaintiff
testified that she understood defendant was at her home to pick up their son.
Plaintiff advised defendant that K.F. did not want to speak with him and did
not want to "come downstairs." She told defendant, "[w]hatever
altercation you had on the phone with him last night, he's mad. I don't want to
get in the middle of it."
After
a few minutes of what plaintiff described as "civil" conversation,
defendant told plaintiff "to go upstairs and tell [K.F.] to come downstairs."
Plaintiff told defendant that she was "not going to turn [her] household
upside down" and that K.F. was not going to come downstairs. She told
defendant to call K.F. later to "work it out."
According
to plaintiff, defendant said he wanted to enter the house to speak with K.F. She
told defendant he was not welcome in her home. Using a number of expletives,
defendant called plaintiff names and criticized her parenting skills. Plaintiff
then told defendant repeatedly to "leave [her] property," to
"get off of [her] property," and that she wanted him "to leave now."
Defendant's derogatory statements to her became "louder and louder,"
drawing the attention of her neighbors. She said it "was embarrassing more
than anything at that point."
Plaintiff
told defendant she was going to call the police and that she wanted him
"to leave now." In response, defendant told her to call the "f'g
police" and that he would be "right here." Plaintiff had her phone
with her and, as she called the police, defendant exited the property, got in
his vehicle and departed. "[T]wo minutes later" defendant returned in
his vehicle, "pulled up" in front of plaintiff's house, and then the
police arrived.
In
response to further questioning by the court, plaintiff explained that in April
2014, K.F. was in the hospital after a drug overdose. While she and defendant
were in the hospital, defendant had "gotten in [her] face" and told
her that "this is [her] fault" and made other derogatory comments
about her. Hospital staff called the
police and also informed defendant he was not to return. Plaintiff did not seek
a restraining order at that time. She had obtained a temporary restraining
order against defendant three years before based upon a claim of harassment.
The
trial judge asked plaintiff if "there were any other incidents of past
acts of domestic violence?" Plaintiff stated there had "always been
verbal harassment" during which defendant would curse at her and make
derogatory statements about her to K.F. She testified that, "[a]lmost
every time he's in my presence, it escalates to him calling me names and
getting in my face . . . ." In response to a request by the trial court
for plaintiff to detail the language used by defendant during the instances,
she said defendant referred to her using expletives and made other statements
"attacking [her] as a person."
At
the conclusion of the trial judge's questioning of plaintiff, the judge asked
defendant if he had any questions for her. In response, defendant said,
"yes." Defendant then began his cross examination of plaintiff.
Defendant asked plaintiff a series of questions regarding text messages they
had exchanged regarding their son and the circumstances surrounding the restraining
order that had been entered three years earlier. During the questioning, defendant made a
statement regarding the prior restraining order. In response, the court said to
defendant, "[w]hoa, whoa, stop." Plaintiff interrupted and asked
defendant, "[w]hat are you talking about?" The court stated,
"[s]top. I'm trying to figure it out."
The
court then directed a series of questions to defendant regarding the prior
restraining order. During the course of the court's questioning, defendant was
asked, "[w]hat about the current incident that brings us here?" In
response, defendant provided testimony regarding the events which were the
subject of the pending complaint. The court also asked, and defendant answered,
many questions regarding text messages he and plaintiff had exchanged.
In
the midst of the court's questioning of defendant, the court told the
defendant, "[h]ere's your problem. You got a couple [of] problems."
The trial judge said he "combed through the facts, particularly, the facts
on the day of the predicate offense in this particular case." The court
said that, "it's not even so much that you showed up, right, because she
had texted you that she had told [K.F.] to call you, right?" The court
informed defendant that:
The problematic point is you have a conversation. She's
telling you what's going on with [K.F.]. You leave. Then you come back. See,
the coming back is indicative of a frame of mind that says, you know what, I
can control you. I can do what I want with regard to you. See, that's where the
problem lies: in your coming back.
Defendant
asked for an opportunity to "comment a little bit about what we just
talked about . . . ." The court denied the request, telling defendant,
"[n]o, no, because here's the problem: for criminal trespass, all that
needs to be established is a person is normally not licensed or privileged to
enter upon a structure and they do so." Defendant immediately told the
trial judge that he "didn't get to talk about that." In response, the
court stated, "[y]ou came back."
After
additional colloquy between the court and defendant, the court made a legal
finding. The court stated that plaintiff "established by a preponderance
of the evidence the trespass" which was the predicate act for the
complaint. The court's colloquy with defendant then continued. The court noted
that defendant admitted the incident in the hospital had occurred. Defendant
advised the court he had not yet addressed the incident and asked if he could
question plaintiff further about it.
The
court denied defendant's request, stating "[w]e're done. We're
done." Defendant made a plea to the
court. Defendant said, "[w]ell, can I ask—please request some leniency and
I explain why? Because I see how you're ruling, but, Your Honor,--." The
court ended the discussion, and stated, "[n]o, no, let me rule first and
then you can understand where we're going."
The
court again found plaintiff established by a preponderance of the evidence the
predicate act of criminal trespass. The court also made a conclusory finding
there was a "history," but did not make any findings of fact as to
what constituted the "history." Lastly, the judge noted that he was
"particularly troubled by the returning to the house once asked to
leave" which he found indicative of an escalation of domestic violence.
Based upon those findings, the court entered the FRO that is the subject of
this appeal.
II.
On
appeal, defendant makes two arguments. He contends his due process rights were
violated when the trial court refused his request to provide testimony,
interrupted his attempt to cross-examine plaintiff, and considered matters
outside of the allegations in the complaint. Defendant also contends there was
insufficient evidence presented by plaintiff to establish an entitlement to a
FRO.
This
court's role in reviewing a trial court's findings following a non-jury trial
is limited. We are bound by a trial court's factual findings that are
"supported by adequate, substantial, credible evidence in the
record." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova
Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484
(1974)). "[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 competent, relevant and
reasonably credible evidence as to offend the interests of justice.'" Cesare,
supra, 154 N.J. at 412 (alteration in original) (quoting Rova
Farms, supra, 65 N.J. at 484); See also D.N. v.
K.M., 429 N.J. Super. 592, 596 (App. Div. 2013), certif. denied,
216 N.J. 587 (2014). "A trial court's interpretation of the law and
the legal consequences that flow from established facts are not entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.
366, 378 (1995).
Based
upon our review of the record, we conclude defendant was denied his fundamental
right to due process by the manner in which the proceeding was conducted. A
party to a civil proceeding is entitled to a fair hearing, with the protections
of due process. J.D. v. M.D.F.,
207 N.J. 458, 478 (2011); K.F. v. Y.Z., 184 N.J. 599, 604
(2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). Due process protections include the
opportunity to be heard and require "procedural safeguards including the
right to cross-examine adverse witnesses and the right to call witnesses . . .
." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div.
2005). Trial courts must "ensure that [a] defendant [in a domestic
violence proceeding] is afforded an adequate opportunity to be apprised of
those allegations" upon which the complaint is based and to prepare for
those allegations. J.D., supra, 207 N.J. at 480.
The
trial court did not provide defendant with an opportunity to cross-examine
plaintiff. Defendant's cross-examination of plaintiff was interrupted by the
trial court's questioning of him. When
the court's questioning of defendant ended, defendant's request to ask
additional questions of plaintiff was summarily denied. That denial deprived
defendant of his due process right to cross-examine plaintiff. Peterson,
supra, 374 N.J. Super. at 124.
Defendant
was also denied his due process right to be apprised of the allegations against
him and to be afforded an opportunity to prepare for them. J.D., supra,
207 N.J. at 480. Plaintiff testified regarding prior alleged acts of
domestic violence about which defendant had not been apprised prior to trial.
Defendant advised the court he was unaware plaintiff would present testimony
regarding the alleged prior acts. Defendant stated that plaintiff was lying
about a prior alleged incident of domestic violence and advised the court that
"the only way [he could] prove [plaintiff was lying] is to bring that
information back at a separate time."
Defendant was unprepared for the testimony because the incident about
which plaintiff testified was not alleged in the complaint.[3]
While
the trial court could properly permit admission of the evidence regarding prior
alleged acts of domestic violence that were not alleged in the complaint, it
should have "recognized"
that by "allow[ing]" the "history to be expanded," it "permitted an amendment to the
complaint" and should have "proceed[ed] accordingly." J.D.,
supra, 207 N.J. at 479-80. The trial court was required to "ensure that defendant [was]
afforded an adequate opportunity to be apprised of those allegations and to
prepare." Id. at 480 (citing
H.E.S., supra, 175 N.J. at 324). The trial court erred when it permitted
plaintiff to testify regarding alleged prior acts of domestic violence and then
denied defendant the opportunity to retrieve evidence relevant to his defense
to the allegations. J.D., supra, 207 N.J. at 480.
Defendant
was also denied the opportunity to testify on his own behalf. While the trial
court was not "without
means to control testimony or to require that parties present testimony and
evidence relevant to the issues in dispute," its obligation was to see
that that "justice [was] accomplished and to conduct and control [the]
proceedings in a manner that [] best serve[d] that goal." J.D., supra,
207 N.J. at 482. The trial court prevented defendant from
testifying about matters relevant to the alleged predicate act and prior
incidents of domestic violence. The court denied defendant's request to
"comment" about the allegation that he had "returned" to
plaintiff's home. The court's refusal to permit defendant to testify about
whether he had "returned" is of particular significance because the
court relied upon defendant's alleged "return" to plaintiff's home as
a basis for the granting of the FRO. As a matter of fundamental fairness,
defendant had the right to fully present his testimony in support of his
defense. The trial court erred when it denied defendant that right. See, e.g.,
Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149, 155 (App. Div.
1994) ("the right to present witnesses is an essential element in the
conduct of a trial.") (citation and internal quotation marks omitted).
We
conclude that the trial court's denial of defendant's due process rights
requires a reversal of the FRO and a remand for a new hearing. The denial of
defendant's rights rendered the presentation of evidence incomplete. We,
therefore, find it unnecessary to address defendant's argument that there was
insufficient evidence presented to support the issuance of the FRO. We add only
the following comments.
Under
the PDVA, a final restraining order may be issued only if the court finds the
plaintiff established by a preponderance of the evidence that the defendant
committed an act of domestic violence. N.J.S.A. 2C:25-29(a); Franklin
v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006).
"Domestic violence" is defined in N.J.S.A. 2C:25-19(a) to mean
the "occurrence of one or more of" certain enumerated acts, including
defiant trespass under N.J.S.A. 2C:18-3b. A person is guilty of "defiant
trespass" if, "knowing
that he is not licensed or privileged to do so, he enters or remains in any
place as to which notice against trespass is given by . . . [a]ctual
communication to the actor." N.J.S.A. 2C:18-3b(1).
The commission of one of the
enumerated predicate acts of domestic violence under the PDVA does not mandate
the entry of a FRO. Silver v. Silver, 387 N.J. Super. 112, 126
(App. Div. 2006). A judge should not issue a FRO unless the order is necessary
"to protect the victim from an immediate danger or to prevent further
abuse." Id. at 127 (citing N.J.S.A. 2C:25-29b).
When a trial court determines a FRO
is appropriate, it must articulate findings of fact and conclusions of law as
to the "predicate act" and the need to protect the victim. R.
1:7-4; J.D., supra, 207 N.J. at 488 (reversing the entry
of a FRO in part based upon the trial court's failure to "sufficiently
articulate findings and conclusions consistent with the statutory
standards"); Silver, supra, 387 N.J. Super. at 128
("the court should consider and make specific findings on the
previous history of domestic violence, if any, between the plaintiff and
defendant, and how that impacts, if at all, on the issue of whether a
restraining order should issue.") (emphasis added).
The trial court here failed to make
the requisite findings of fact and conclusions of law regarding defendant's
alleged commission of the predicate act and the need to protect the victim. On
remand, the grant or denial of plaintiff's request for a FRO must be supported
by the requisite findings.
Reversed and remanded. We do not
retain jurisdiction.
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[1]
We use initials to identify the parties pursuant to Rule 1:38-3 (d)(10).
[2]
There was no testimony regarding the date of the incident which provided the
basis for the filing of the complaint or entry of the FRO.
[3]
At another point, defendant referenced
an allegation about which he was learning for the first time. Defendant told
the court, "Well, now that she's brought this up, if I have the
opportunity I can absolutely bring back the information, the police report and
the complaint she filed to prove that she's making---she made stuff up in that
report." While defendant's statement "was not cloaked in the
lawyer-like language of an adjournment request . . . it was sufficient to raise
the due process question for the trial court . . . ." J.D., supra,
207 N.J. at 480.
