S.C., Plaintiff-Respondent, v. A.M., Defendant-Appellant.
__________________________________
Submitted November 18, 2013 – Decided
Before Judges Yannotti and Ashrafi.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County, Docket No.
FV-02-1172-13.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
PER CURIAM
Defendant appeals
from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35. He contends that the
trial court violated his due process rights by rushing into a final hearing without
giving him time to seek legal advice, and also that plaintiff failed to
establish predicate acts of domestic violence or a need for a restraining order. Plaintiff has not filed opposition to the
appeal.
Having reviewed
the entire record and found it to contain ambiguous indications of defendant's
preparedness and willingness to proceed to a final hearing on the first
business day after the complaint was filed, we conclude that defendant is
entitled to a new trial.
Defendant was
fifty-one years old at the time of the domestic violence complaint. He and plaintiff had lived together for seven
years and had no prior history of domestic violence filings or other judicial
proceedings. Defendant was served with plaintiff's
complaint and a temporary restraining order on a Saturday night, December 8,
2012. The complaint alleged that on that
same date defendant had been:
[V]erbally
abusive to the plaintiff in recent months and constantly arguing. During the course of a verbal argument, the
plaintiff has repeatedly asked the defendant to leave the home. Today at approximately [6:20 p.m.], the
defendant stated that "he has nothing to lose and will break her neck and
burn the house down before he leaves."
The
complaint charged a terroristic threat and harassment as the predicate acts of
domestic violence. Regarding the history
of prior domestic violence, the complaint stated: "There have been no
reports of previous domestic violence made with the Ridgefield Park Police
Department. However, the plaintiff
reports this verbal confrontation has become quite regular in recent
months."
The parties
appeared before the Family Part that Monday morning, December 10, 2012. Neither was represented by an attorney. The court placed the parties under oath. Both stated they had no other witnesses to
present. Because both parties spoke
limited English and no translators were used, the transcript of the hearing
contains many "indiscernible" designations and other language
oddities that make the testimonial record somewhat obscure. We provide a lengthy summary here to reveal
both the extent and the limitations of the evidence.
The judge first
inquired whether plaintiff wished to proceed with a final hearing that day, and
she answered yes. The judge then asked
defendant if he had ever previously had a restraining order against him, and he
answered no. The judge asked defendant
if he had heard the judge's introductory explanation that had apparently been
given to all persons on the court's calendar that morning.
Defendant answered yes, but he also said he
did not have a chance to get his hearing aid when he was removed from the home and
that he would ask the judge to repeat if he did not hear something.
The judge
summarized the allegations of plaintiff's complaint, and inquired briefly of
the parties about their relationship for the purpose of determining the court's
jurisdiction to hear the case as a domestic violence matter. Next, the judge provided a brief explanation
of how the trial would proceed. The
judge then engaged in the following colloquy with defendant:
COURT:
After I hear all that, if I believe you committed harassment or
terroristic threats or both; then I have to make a finding [i]f domestic
violence occurred. And then, I will
decide whether I think she needs the restraining order to be safe from further
domestic violence.
DEFENDANT:
Okay.
COURT: If
yes, I give her the restraining order.
If no, I dismiss the case. If I
enter a restraining order against you, then today you'll be fingerprinted and
photographed and [your] name will be added to a registry of people who have
committed domestic violence. It's kept
by the office of the Attorney General.
It comes up in background checks.
If you're not a legal citizen of the United States, it can affect your
immigration status. I can award a
penalty of 50 to 500 dollars. If she
suffered financial damages, I can order you to pay damages.
So,
understanding all of that, are you ready to go forward, today, representing
yourself?
DEFENDANT:
Let's say — let's try — what — what happen, but I really don't know
what's going on. Why should deduct (sic)
to be honest —
COURT: Okay. But you read the complaint; right? You know what the complaint says?
DEFENDANT:
Yes. Yes. I read the complaint. I — I know that —
COURT:
Let's hear from her.
DEFENDANT:
What about — let's see what happen —
COURT:
Okay.
DEFENDANT: — and we take it from that point.
The judge
then began questioning the parties, plaintiff first and then defendant, about
the circumstances that led to the filing of the complaint. The judge also offered them opportunities to
question the other. As best as we can
understand the transcript, the following summarizes the testimony.
Plaintiff and
defendant lived together in their home in Ridgefield Park, along with
plaintiff's ten-year-old son. Defendant worked
in construction jobs. He had essentially
built the Ridgefield Park home for the parties, although plaintiff appears to
have been the title owner of the home. The
parties also owned another home in Florida that was occupied by a tenant. Earlier in their relationship, defendant was
like a father to plaintiff's son, but in recent months, according to plaintiff,
he no longer treated her and her son well.
It is not clear
what caused the relationship to deteriorate, but financial difficulties and
defendant's drinking were among the causes.
Mortgage payments were not made on the Ridgefield Park home, and it was
in foreclosure. According to plaintiff,
defendant was drinking beer every night, although she also testified that, to
her surprise, he would not seem drunk (in the sense of loss of his faculties),
and he could still leave for work at seven o'clock every morning.
For some weeks or
months before plaintiff filed her complaint, the parties had agreed to sleep in
different rooms. She was avoiding him
because he was verbally abusive when he drank, expressing disdain for her Hispanic
origin and making other derogatory comments, including calling her a "hooker"
(it appears from the record on one occasion).
She was especially upset by his verbal abuse because it also occurred in
the presence of her son.
Two weeks before filing
the domestic violence complaint, plaintiff told defendant "this is not
working anymore . . . I don't love you anymore.
So, I want you to move out of the house." Defendant said he would not move until he received
"papers from the court." On
December 8, 2012, as well as two days earlier on December 6, defendant said to
plaintiff that "before he get out of the house he gonna break my neck and
he gonna burn the house down."
Plaintiff testified
that she was afraid of him because she did not know what might be "in his
head" when he drank. She slept in a
separate room with her son and locked the door at night, also placing a chair against
the door and a knife under her bed. Upon
questioning by defendant, plaintiff readily acknowledged that defendant had
never used physical force against her, except that he had pushed her once. There was no further testimony about the time
or cause of the pushing incident.
Defendant
testified that he did not drink every night, declaring that he would not be
able to do dangerous work on a roof and in other construction tasks if he was
"a drunk." Regarding
plaintiff's fear, he seemed to testify that plaintiff had habitually locked
their bedroom door. He was not aware of
a chair or a knife since they had begun sleeping in separate rooms because he
had never attempted to enter her bedroom.
Defendant did not deny that he had pushed plaintiff once, but he
testified he was not a violent person.
He seemed to admit that he might have said offensive things but without
meaning any harm to plaintiff. He
lamented that the domestic violence complaint would interfere with his plan to
become a citizen of this country, and consequently, his "life would be
over."
According to defendant,
he saw plaintiff infrequently, apparently because they would both leave for
work early in the morning, and they never "had the chance" to talk
with each other. He seemed to blame
their financial problems for the destruction of the relationship. Their alienation escalated after she returned
from a trip to Spain. He was upset
because of a very high cell phone bill that resulted from the trip, but she
would not talk to him about the bill.
Upon her return, she
told him that women in America had rights, and she insisted that he move out
within two weeks. He testified that he was
willing to move out of the house, but he had no relatives or friends in this
country that could aid him. He told
plaintiff he had looked for an apartment but could not find one in the
aftermath of Hurricane Sandy, in particular, near Staten Island where most of
his construction work was located. He said
to plaintiff that he would move into their house in Florida but had to wait
until February when the tenant was expected to vacate. He asked her to give him until then to move
out. According to defendant, she
responded that she would allow him to stay in the Ridgefield Park home until
March and then move into the Florida home if he paid her $15,000.
The testimony is
unclear, but it appears that the parties had earlier maintained a substantial
savings account, which was in defendant's name alone. He withdrew money about a year earlier and
then lost it in stock investments, he said.
In her testimony, plaintiff acknowledged that the money "was
his," but she also believed they were both entitled to share it. She denied she had demanded $15,000 from him
in exchange for allowing him to stay in the Ridgefield Park home. She insisted she was afraid of him and just
wanted him to stay away from her because of his verbal abuse.
Defendant denied he
had threatened to break plaintiff's neck or to burn the house. But near the end of the hearing, defendant said
"maybe I said that." The trial
judge subsequently credited the testimony of plaintiff and found that defendant
had in fact made the threat on both December 6 and 8.
Both parties
expressed a desire not to hurt each other as a result of the domestic violence
allegations and the court proceedings. Plaintiff specifically said, "I don't
wanna hurt him." She just wanted
him to pack up his belongings and "disappear," and she wanted to
"live in peace." Throughout
the hearing, defendant expressed no verbal hostility to plaintiff and perhaps
even seemed to sympathize with her distress, but he was frustrated by the turn
in their relationship and wanted to defend himself against being labeled a
drunk or a violent person. At the end of
the hearing, he stated: "We don't want to hurt each others [sic]. And we don't want to live together. Just give me a chance to find apartment to
live. If that is possible. If it's impossible, so, if I have to live in
the street, I will live in the street."
In a brief oral
decision, the judge found that defendant's threats on both December 6 and 8
were terroristic threats in violation of N.J.S.A. 2C:12-3(b). The judge also found that defendant committed
the predicate act of harassment over a course of time by making derogatory
statements about plaintiff. The judge
granted a final restraining order to plaintiff.
After defendant retained
an attorney and filed a notice of appeal, the judge issued a supplemental
statement of reasons supporting her decision of December 10. See R. 2:5-1(b). The express purpose of the supplemental
decision was to elaborate on the judge's conclusion that a final restraining
order was necessary, in accordance with our discussion of the pertinent
analysis in Silver v. Silver, 387 N.J. Super. 112, 126-27 (App.
Div. 2006). The judge also added that the
statutory basis for a finding of terroristic threats was both subsections (a)
and (b) of N.J.S.A. 2C:12-3. The
judge noted that, despite peaceful "interludes" in the relationship,
defendant abused alcohol and "became aggressive and threatening and frightening." The judge found "there was a genuine and
substantial risk that he might carry out his threats and break plaintiff's neck
or burn down the home." The judge
found it "inconceivable" that defendant would be permitted back home
after these findings.
Defendant argues
on appeal that his due process rights were violated because the case proceeded
to a final hearing before he was given an opportunity to consult with counsel
and prepare a full defense; that his rights were further violated when the
court found that he made terroristic threats on December 6, 2012, a date that
was not specifically alleged in the complaint; and that the evidence was
insufficient to find he had committed predicate acts of domestic violence that
warranted a final restraining order.
In a domestic
violence case, the standard of review on appeal is very deferential to the
trial judge's findings of fact and the conclusions of law based on those
findings. In Cesare v. Cesare,
154 N.J. 394, 413, 416 (1998), the Supreme Court placed trust in the
expertise of Family Part judges to assess evidence of domestic violence and the
need for a restraining order. Regarding
the function of the appellate court, the Supreme 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, we recognize
that the Family Part judge evaluated the testimony presented and concluded it proved
defendant had committed acts of domestic violence and plaintiff was entitled to
a final restraining order. See Silver,
supra, 387 N.J. Super. at 128. We reject defendant's contention that the
judge's findings and conclusions were erroneous. We are troubled, however, with the dispatch with
which the case proceeded to a final hearing in the face of indications that
defendant did not fully understand the proceedings or his potential defenses,
especially in a close case.
Citing H.E.S.
v. J.C.S., 175 N.J. 309, 322 (2003), defendant argues that his due
process rights were violated when the court proceeded to hold a final hearing
on Monday morning December 10, 2012, less than one business day after he had
been served with the domestic violence complaint. He argues that he did not knowingly waive his
right to be represented by counsel.
A
complaint for a domestic violence restraining order, however, is a civil rather
than a criminal matter, and without the kind of consequences of magnitude that
would entitle a defendant to a constitutional right to counsel. D.N. v. K.M., 429 N.J. Super.
592, 600-06 (App. Div. 2013). The court was
not required to place on the record a formal waiver of counsel from defendant,
as in a criminal case. See, e.g.,
Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525,
2541, 45 L. Ed. 2d 562, 581-82 (1975); State v. Crisafi, 128 N.J.
499, 509-12 (1992). Nevertheless,
"[d]ue process . . . does allow litigants a meaningful opportunity to
defend against a complaint in domestic violence matters, which would include
the opportunity to seek legal representation, if requested." D.N., supra,
429 N.J. Super. at 606 (citing Franklin v. Sloskey,
385 N.J. Super. 534, 540-41 (App. Div. 2006)).
Here,
defendant did not request an opportunity to retain or consult an attorney
before proceeding with the hearing. However,
defendant said in his colloquy with the judge: "I really don't know what's
going on." He indicated
he was willing to hear what plaintiff had to say in pursuing her complaint and
then would "take it from that point." As often happens where a case proceeds with
unrepresented parties, the possibility of adjourning the case did not resurface
after the evidentiary hearing began. Had
nothing else developed that called into question defendant's due process
rights, we would likely find no plain error in the court proceeding and
concluding a final hearing in the absence of a request for adjournment.
But the proceedings took a turn that
implicates additional due process rights of a domestic violence defendant. Plaintiff expanded the allegations of the
complaint to include the same serious threat about injuring her and burning the
house being made on December 6 as well as on December 8. The court subsequently relied on the expanded
version of the most serious conduct alleged against defendant and concluded that
the threats were in fact made and constituted predicate acts of domestic
violence in the form of terroristic threats.
A
domestic violence defendant has a due process right to be apprised before the
time of the hearing of the allegations against him. See J.D. v. M.D.F.,
207 N.J. 458, 478-80 (2011). "At
a minimum, due process requires that a party in a judicial hearing receive
'notice defining the issues and an adequate opportunity to prepare and
respond.'" H.E.S., supra,
175 N.J. at 321 (quoting McKeown-Brand v. Trump Castle Hotel &
Casino, 132 N.J. 546, 559 (1993)).
"More particularly . . . due process forbids the trial court 'to
convert a hearing on a complaint alleging one act of domestic violence into a
hearing on other acts of domestic violence which are not even alleged in the
complaint.'" J.D., supra,
207 N.J. at 478 (quoting H.E.S., supra, 175 N.J. at
322). The variation in this case merely
expanded the time and scope of a predicate offense that was already alleged in
the complaint. Still, the alleged
repetition of the threat to injure plaintiff and burn down the house added significant
weight to its probative value in the totality of the circumstances of this case.
In her
supplemental decision, the judge interpreted plaintiff's testimony as
indicating that defendant was "very violent" when he drank. The fact that the threat was made more than
once seemed to influence the judge's conclusion that it was more than just
words in the heat of passion and constituted a terroristic threat within the
meaning of N.J.S.A. 2C:12-3(a) and (b).
The court's finding that plaintiff reasonably feared the threat was,
logically, based on the totality of plaintiff's allegations rather than the
occurrence of a single incident.
Defendant had a
right to notice that he would be defending against an allegation that he had
made such a serious threat on multiple occasions. See J.F. v. B.K., 308 N.J.
Super. 387, 391-92 (App. Div. 1998); L.D. v. W.D., Jr., 327 N.J.
Super. 1, 4 (App. Div. 1999). Yet
upon reading the complaint, defendant was only apprised of a single threat and,
very generally, of prior verbal arguments as constituting the history of
domestic violence that had been alleged.
We do not mean to
suggest that, in every case, the addition of a prior similar incident will
prejudice the defendant or require an adjournment of the hearing. In the specific circumstances of this case,
however, the issue of whether defendant meant his words to be taken as a real threat
was crucial to a finding of domestic violence warranting a final restraining
order.
"In the
domestic violence context, an act of terroristic threats requires that (1) the
abuser threatened the victim; (2) the abuser intended to threaten the victim;
and (3) 'a reasonable person would have believed the threat.'" Id. at 121-22 (quoting Cesare, supra,
154 N.J. at 402). Given the
history of the parties' relationship, there was a potential defense that defendant
did not mean to make a real threat and his words were not reasonably believable. The charge of making terroristic threats was
potentially defensible on the basis of whether the threats were made
"under circumstances reasonably causing the victim to believe the
immediacy of the threat and the likelihood that it will be carried out." State v. Dispoto, 189 N.J. 108,
121 (2007) (quoting N.J.S.A. 2C:12-3(b)).
Although plaintiff
testified that she was frightened and slept with her room locked and
barricaded, her nighttime fright apparently preceded defendant's threats, and
possibly even the time they began sleeping in separate rooms. In addition, her fear was based on a vague apprehension
that "something in his head and then [he] try to do something to
me." There was no history of
physical violence by defendant against plaintiff or anyone else. There was no history of threats of physical
violence before December 6, 2012, only derogatory remarks that, alone, were
unlikely to warrant entry of a final restraining order. See, e.g., E.M.B. v. R.F.B.,
419 N.J. Super. 177, 182-83 (App. Div. 2011); C.M.F. v. R.G.F.,
418 N.J. Super. 396, 399, 403-04 (App. Div. 2011); State v. L.C.,
283 N.J. Super. 441, 445, 450-51 (App. Div. 1995), certif. denied,
143 N.J. 325 (1996); Peranio v. Peranio, 280 N.J. Super.
47, 50, 55-56 (App. Div. 1995); Murray v. Murray, 267 N.J. Super.
406, 408-10 (App. Div. 1993).
The history of
abuse in the relationship can be the most important aspect of the court's
findings and conclusions in a close case.
See H.E.S., supra, 175 N.J. at 327-28; Cesare,
supra, 154 N.J. at 402, 405; Peranio, supra, 280 N.J.
Super. at 54. In Cesare, supra,
154 N.J. at 405, the Court noted that "a particular history can
greatly affect the context of a domestic violence dispute." Accord State v. Hoffman, 149 N.J.
564, 585 (1997); Silver, supra, 387 N.J. Super. at 128.
Here, the testimony
at trial was not clear regarding plaintiff's allegations of past domestic
violence. In her testimony, plaintiff
alleged prior verbal abuse by defendant for several months, but she also seemed
to say that his offensive conduct did not persist for a long time, stating that
he was "okay" five minutes later.
She acknowledged there was no physical violence except one pushing
incident that was not further explained.
We are ever
mindful of our limited function as a reviewing court under the standard established
in Cesare, supra, 154 N.J. at 412. The trial judge heard the testimony firsthand
and observed the parties. She relied on
those observations in reaching her conclusions and decision. As the Supreme Court said, the trial judge is
in a better position than we are to determine whether the evidence fulfills the
elements necessary to prove predicate acts of domestic violence and the need
for a restraining order. Id. at
413, 416. Therefore, we reject
defendant's argument that the evidence was insufficient as a matter of law to
demonstrate domestic violence and the need for a restraining order.
However, with time
and opportunity to consult with counsel if so inclined, and to prepare to
answer all the allegations that the trial court relied upon in its decision,
defendant might have been able to persuade the judge that his threats were
merely empty words and his other abusive statements were more in the nature of
"ordinary domestic contretemps" following a dispute about possession
of the couple's home, as in Corrente v. Corrente, 281 N.J. Super.
243, 250 (App. Div. 1995). In defending
against the charge of making terroristic threats, defendant may have presented
a more persuasive defense that his conduct did not threaten "immediate
danger to the person or property," id. at 248 (citing N.J.S.A.
2C:25-29(a)(2)), and thus did not warrant entry of a final restraining order,
especially because he was willing to remove himself from the home.
A
final domestic violence restraining order has serious consequences for the
defendant against whom it is entered. See
J.D., supra, 207 N.J. at 474; N.J.S.A. 2C:25-29(b),
-30, -31,
-34. Here, we heed the Supreme Court's recent remarks
that: "When permitting plaintiff to expand upon the alleged prior
incidents and thereby allowing an amendment to the complaint, the court also
should have recognized the due process implication of defendant's suggestion
that he was unprepared to defend himself."
J.D., supra, 207 N.J. at 480.
Our lack of
confidence in the outcome of the hearing derives from the alacrity with which the
proceedings occurred in a relatively close case, together with a language
barrier and defendant's questionable understanding of his due process rights. A new trial will allow defendant to prepare
and present his defenses fully to the court, and it should not cause any
prejudice to plaintiff, who has received the protection of a restraining order
since the time her complaint was filed. See
ibid. (continuation of temporary restraining order pending adjournment
to permit defendant to prepare his defenses).
We reverse
and remand for a new trial. The
temporary restraining order issued on December 8, 2012, shall remain in effect
pending a new trial or other disposition in the Family Part. We do not retain jurisdiction.
