Get Divorced and move on plus Domestic Violence cases

Thursday, July 5, 2012

Bornstein v. Bornstein

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3495-10T4

SHARON BORNSTEIN

ARTHUR BORNSTEIN,

________________________________

May 23, 2012

Argued May 7, 2012 - Decided

Before Judges A. A. Rodríguez, Sabatino, and Ashrafi.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1106-03.

Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Ms. Frost, on the brief).

Respondent has not filed a brief.

PER CURIAM

This matrimonial case returns on appeal following further proceedings in the trial court regarding the application of defendant Arthur Bornstein (the "ex-husband") to reopen the terms of an interspousal agreement incorporated into the parties' 2003 divorce judgment because he allegedly lacked sufficient mental capacity to assent to the terms negotiated by the parties' counsel. After an extensive evidentiary hearing that explored in depth the history of the ex-husband's mental condition, as well as his interactions with his former attorney during the divorce proceedings, the trial court denied the motion to reopen the judgment. We affirm.

We incorporate by reference the facts and procedural history set forth in our 2007 unpublished decision that preceded the trial court proceedings and the current appeal. See Bornstein v. Bornstein, No. A-3156-05 (App. Div. Aug. 24, 2007). Only a few points bear repeating. The parties were married in 1993 and had no children together. In 1978, long before the marriage, the ex-husband was involved in an accident that caused him permanent cognitive disabilities, and which entitled him to receive Social Security Disability payments. At the time of the divorce proceedings, the ex-husband, although he was licensed as a real estate agent, was not regularly employed. His spouse, plaintiff Sharon Bornstein ("the ex-wife"), was employed and earned about $65,000 annually.

The parties and their respective counsel appeared before the Family Part on November 20, 2003, at which time their agreement was presented for the court's approval. As reflected in the transcript excerpts quoted at length in our prior opinion, see id. at 3-8, the parties were questioned extensively by the judge. They each confirmed their assent to the terms of the agreement, which they acknowledged were fair; their mutual ability to make an informed decision; their denial of being affected by medication or substances that could affect their judgment; and their lack of questions for their respective counsel or the court.[1] Pursuant to the agreement, the ex-husband waived a claim for alimony, although he received a $35,000 lump sum in addition to his half-share of the equity in the marital residence.

In 2005, the ex-husband filed a motion pursuant to Rule 4:50-1 seeking to vacate the terms of the divorce judgment and, in particular, to repudiate his alimony waiver. He based his motion upon a claim that he was suffering from ongoing mental impairment at the time of the 2003 divorce proceedings and that he did not understand what he was doing. The ex-husband supported his 2005 motion with letters and reports from several mental health professionals who had evaluated him. The ex-wife opposed the application. The trial court rejected the ex-husband's motion, finding that the ex-husband's brain injury had not markedly changed since his 1978 accident, and that the opinions in the doctors' reports that he lacked sufficient capacity to enter into the divorce in 2003 were speculative. The court further concluded that the substantive terms of the divorce were not inequitable, and that the ex-husband's alimony waiver was a fair quid pro quo in exchange for his receipt of an enhanced sum in equitable distribution.

The ex-husband then appealed, contesting the trial court's denial of his motion to reopen the divorce judgment. We affirmed that decision in our August 24, 2007 opinion, agreeing with the trial court that the ex-husband's medical proofs were inadequate to demonstrate that he lacked sufficient capacity to enter into the interspousal agreement. Bornstein v. Bornstein, supra, slip op. at 10-12. We also sustained the court's finding that the ex-husband had failed to sustain his burden of proving that the terms of the divorce were unconscionable. Id. at 12-13.

Shortly after our opinion was issued, the ex-husband moved for reconsideration. In support of that motion, the ex-husband furnished us with additional mental health records and reports that had not been supplied to the trial court in 2003 nor on the appeal. On September 26, 2007, we issued an order denying reconsideration. That order was without prejudice and specifically stated that defendant could file a renewed motion in the Family Part to seek relief under Rule 4:50-1. Our order also required the ex-husband to justify, in any such proceedings, why the supplemental medical materials had not been previously supplied to the trial court.

Thereafter, defendant filed a motion in the Family Part seeking relief under Rule 4:50-1. The trial court conducted four days of evidentiary hearings in May and August 2010 to further develop the record of the ex-husband's mental condition and to re-examine whether he lacked capacity at the time of the 2003 divorce. The ex-wife participated in those hearings, pro se, and presented the testimony of her former attorney who represented her during the divorce in 2003, and the testimony of her ex-husband's former attorney who had represented him in the divorce proceedings. The ex-husband, represented by new counsel, presented testimony from a neuropsychiatrist, his physician, his sister, and the ex-wife. The ex-husband also testified on his own behalf. The trial court was also supplied with the voluminous mental health records that were thereafter reproduced on appeal for our own consideration.

The gist of the ex-husband's proofs, including the expert testimony of the neuropsychiatrist, is that he lacked the mental capacity in 2003 to appreciate what was occurring in the divorce case and that, had he been more cogent, he would have insisted that his then-attorney negotiate an alimony award. In particular, the neuropsychiatrist opined that the ex-husband's cognitive limitations were of a latent nature, such that he could appear to be cogent to others and not realize that he, in fact, was not fully understanding the import of the negotiations.

The ex-husband's former attorney, however, testified that during his interactions with him in 2003, the ex-husband had been lucid and had behaved as if he understood what was going on. The attorney stated that the ex-husband never advised him that he did not want to go through with the settlement on the negotiated terms, that he did not indicate in any way that he lacked understanding of what was going on in the negotiations, and that he was "extremely actively involved" in the case.

Upon considering the amplified proofs, the trial court again concluded that the ex-husband had not shown an entitlement to relief under Rule 4:50-1(f). In his order dated February 2, 2011, the judge specifically found that the testimony and medical evidence "fail[ed] to overcome the other available evidence of the defendant's overall competence, as well as his knowledge of and participation in the full divorce process, with the advice and assistance of competent counsel." The judge further noted that "[t]he evidence, taken as a whole, conclusively demonstrates that the defendant was capable of understanding the process and intelligently and voluntarily entering into his divorce."

In his oral decision accompanying his order, the judge found that "[i]t's clear to this [c]ourt by clear and convincing evidence that [the ex-husband] understood what was going on and that there is no reason to nullify the agreement or to set aside the judgment of divorce." The judge found particularly significant the prior attorney's description of the substantive interactions that he had with the ex-husband in negotiating the terms of the divorce. The judge also noted that, at the time of the divorce litigation, the ex-husband had an opportunity to consult with his sister. Additionally, the judge observed that the ex-husband was cogent in his testimony during the 2010 remand proceedings and that, in fact, he had "match[ed] the wits" of his ex-wife.

The ex-husband now appeals, contending that the trial court erred in denying him relief under Rule 4:50-1(f). The ex-husband contends that the court improperly used his mental state and courtroom demeanor in 2010 in a retroactive manner. The ex-husband further argues that the judge was biased, and that the terms of the divorce, particularly the alimony waiver, were manifestly unfair.

Having considered these arguments and the copious record, we affirm the trial court's renewed denial of the ex-husband's Rule 4:50-1(f) motion, substantially for the reasons detailed in Judge Terence P. Flynn's extensive oral opinion of February 2, 2011 and his corresponding order of that date. We add only a few remarks.

Judge Flynn painstakingly considered the proofs that were adduced at the four days of evidentiary hearings. The judge rightly recognized that the ex-husband bore a heavy burden under Rule 4:50-1(f) to demonstrate "exceptional circumstances" to set aside the negotiated terms of the divorce that were placed on the record in November 2003. Whether exceptional circumstances are present to obtain relief under the Rule hinges upon the totality of the facts, and is assessed on a case-by-case basis. In re Guardianship of J.N.H., 172 N.J. 440, 473-74 (2002). To obtain relief, the movant must demonstrate that the circumstances are exceptional and that continued enforcement of the judgment would be "unjust, oppressive or inequitable." Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971), superseded by statute on other grounds, Comparative Negligence Act, L. 1987, c. 146, as recognized in Reichert v. Vegholm, 366 N.J. Super. 209, 224 (App. Div. 2004).

The judge specifically found that the ex-husband's testimony lacked credibility in numerous respects. That credibility assessment warrants our deference. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); see also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The judge also did not find the testimony of the ex-husband's experts to be persuasive. Even though the unrepresented ex-wife did not present any competing expert testimony, the court, as fact-finder, was not obligated to adopt at face value the opinions of the ex-husband's experts, despite their qualifications. See Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). The judge was entitled to accord greater weight to the testimony of the ex-husband's trial counsel, whose recollection of the ex-husband's cogent substantive involvement in the divorce litigation and negotiations was corroborated by contemporaneous letters that the ex-husband had sent his counsel in 2003 that commented upon the substance of the case.

We reject the ex-husband's claim that Judge Flynn gave improper consideration to the ex-husband's courtroom demeanor in 2010 as relevant counter-proof of his alleged lack of capacity in 2003. It is impossible to replicate how the ex-husband actually presented himself in 2003. The judge rightly took into account the ex-husband's present demeanor as circumstantial evidence of his prior condition, and also to the extent that it bore on the credibility of his present sworn assertions.

The ex-husband's contention that the trial judge was biased and showed favoritism to the ex-husband's former counsel lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). The judge reasonably considered the first-hand observations of the former counsel as having substantial probative value in undercutting the ex-husband's claim that he had been too impaired to participate in the divorce negotiations in a meaningful fashion.

Lastly, our conclusion from 2007 that the terms of the divorce were not unconscionable, see Bornstein v. Bornstein, supra, slip op. at 12-13, remains unaltered, even in light of the additional proofs that were tendered on the remand.

Affirmed.

[1] Since the parties are well aware of the background, there is no need in this opinion to elaborate upon the history of the ex-husband's mental health condition, diagnoses, or treatment, including the information contained within the fourteen volumes of appendices furnished on this appeal, all of which we have duly considered.

E.A., v. A.A.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4391-10T3

E.A.,

A.A.,

____________________________

May 18, 2012

Argued February 7, 2012 - Decided

Before Judges Yannotti and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-002434-11.

Eileen M. Connor argued the cause for the appellant (Gibbons P.C., attorneys; Ms. Connor, Lawrence S. Lustberg and Alicia L. Bannon, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from an order entered April 1, 2011, vacating a temporary restraining order (TRO) and dismissing her complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The trial judge, after several days of hearings, found that plaintiff had not proven by a preponderance of the credible evidence that acts of domestic violence had occurred. The trial judge also had "significant difficulty with the credibility of the plaintiff" and cited several inconsistencies in her proofs. For reasons expressed hereinafter, we affirm the order of the trial court.

Plaintiff contends the order dismissing the domestic violence complaint and vacating the TRO must be reversed because the trial judge imposed an "onerous standard of proof" upon her at the hearing and relied upon "legally discredited assumptions and stereotypes regarding domestic violence" in assessing the evidence. She adds that the trial judge also relied upon an "unauthenticated text message" in reaching his conclusions.

To put this matter in perspective, we briefly review the family relationship of the parties and the actions that preceded the filing of the domestic violence civil complaint by plaintiff on March 14, 2011. We will then review the evidence presented by the parties at the hearings on the complaint, as well as the trial judge's findings of fact and conclusions of law.

Plaintiff and defendant are unmarried adults and met in the Dominican Republic. They have three children, who were four, three and two years of age, respectively, at the time of the alleged incidents of domestic violence. At that time, plaintiff was twenty-one and defendant was forty years of age and lived with their children in Newark.

On December 12, 2010, plaintiff and her children left New Jersey and began residing with plaintiff's cousin in New York City. Defendant objected to this arrangement and on December 13, 2010, filed a custody complaint with the Family Part in Essex County. After speaking with plaintiff, he withdrew the complaint ten days later, apparently believing that plaintiff would shortly return to New Jersey.

Plaintiff, however, remained in New York and on January 26, 2011, filed a "Family Offense Petition" with the family court in New York alleging that on December 1, 2010, defendant "harassed . . . and hit [her] repeatedly on the back with a shoe in front of the children" and threatened to "throw [her] down the stairs." She also alleged that in 2007 defendant pulled her hair, causing her to fall, and hit her "on numerous occasions with a belt and telephone wire", adding that he "constantly threatens . . . bodily harm."

Defendant then filed a second custody complaint with the Family Part in Essex County on February 7, 2011, and the trial judge scheduled a hearing date for March 10, 2011. A temporary order of protection was entered by the family court in New York on February 9, 2011, barring defendant from contacting plaintiff. Plaintiff also filed a support petition against defendant in New York on February 22, 2011.

On March 10, 2011, plaintiff failed to appear before the trial judge in New Jersey, and defense counsel informed the trial judge of plaintiff's New York petitions and advised that the New York court had "adjourned both cases" pending a decision by the New Jersey court. The trial judge at first entered a bench warrant against plaintiff for failing to appear, but vacated that order later in the day after plaintiff responded to a telephone call from the judge and then appeared, claiming she had not been apprised of the pending court date or action.

With this procedural background, we turn to the domestic violence civil complaint at issue here and the hearings that followed. We derive the factual allegations from the testimony presented at the hearings.

On March 14, 2011, plaintiff filed a complaint against defendant claiming she had been assaulted, harassed and threatened by defendant on December 1, 2010, at 5:00 p.m. She indicated in the complaint that, "defendant hit her repeatedly on the back of the head with a shoe in front of their three children" and that he threatened to "throw [her] down the stairs." The typed addendum to the complaint listed the same prior acts listed in the New York petition and in a hand-written addition stated she was "hit" in 2009, called "ugly, crazy etc" in 2010, and "throughout 2007 to 2010, def[endant] engaged in several act[s] of forcible sexual conduct."

The trial judge entered a TRO against defendant on March 14, 2011, after hearing brief testimony from plaintiff. When asked if defendant had access to a weapon, plaintiff replied, "I saw him with a gun. He showed it to me, he threatened me with that once." Hearings on a final restraining order were then scheduled and held over the course of three days, with each party represented by counsel.

When asked to explain what happened in "early December of 2010", plaintiff testified that she was upstairs with her children when her daughter told her she had seen defendant "on the bed" with a "woman that he has." Plaintiff then told the defendant "not to take the child over there with him. Because they know everything, the children know everything." Defendant replied, according to plaintiff, that "the child was lying" and he then hit plaintiff "like three times" in the back with a child's boot. He also threatened to "throw [plaintiff] down the stairs" and called plaintiff "ugly, stupid and crazy." Plaintiff's counsel then asked, "while he was in the act of actually hitting you with the shoe and punching you in the head, what were the children doing?" An objection was raised to the form of the question, and plaintiff then noted that "it was a fist that hit me in the back of the head." Plaintiff also volunteered that "because of the blows that I received, I had to go to the hospital and I received three injections for it." The trial judge at this point asked plaintiff's counsel if she had any hospital records reflecting such treatment, and plaintiff's counsel replied, "No. No, Your Honor. May I proceed?"

Later in her testimony, plaintiff indicated that she did not receive any medical attention in the hospital or otherwise for any injuries resulting from the alleged attack by defendant. She added that after the alleged incident, she did not call the police but, rather, called her cousin in New York. When asked by her counsel why she did not call the police, plaintiff responded, "[defendant] said he was going to have me deported and he's going to take my kids away."

Although the domestic violence complaint did not allege any prior history in 2005, plaintiff was permitted to testify over defendant's objection that in 2005 defendant struck her on the legs with a stick. She further testified that in 2006, as she was providing milk and cereal to their oldest child, defendant allegedly told her that the food "was for him, so he pulled my hair and knocked me backwards. Knocked me down backwards." Then, according to plaintiff, in the summer of 2007, a man called the house and when plaintiff picked up the phone, defendant "started hitting [plaintiff] on the head with a telephone cord." She added that he also struck her arm with his fist leaving bruises. She did not seek medical treatment and did not call the police.

Plaintiff said she called members of her family and stayed with them in New York for two months. Plaintiff's counsel also asked her if defendant ever had access to a gun and plaintiff replied "yes" and that defendant "threatened [her] with it." She added that between 2007 and 2010, defendant forced her to have sexual relations with him "like, ten or more times a month."

Plaintiff said she left home on December 12, 2010, to stay with a cousin in New York. She did not call the police at that time. On cross-examination, defense counsel showed plaintiff a text message sent to defendant's phone from plaintiff's phone on December 14, 2010, with the words "somebody knows the slut you impregnated." Plaintiff stated she did not send that text message but that it might have come from her phone.

Plaintiff's cousin recalled seeing bruises on the plaintiff in the summer of 2007. She indicated that plaintiff went back with defendant because he "was her husband." Plaintiff's uncle also testified that he saw plaintiff in 2007 and that "we called the police like twice, but the police did not arrive."

The last witness to testify for plaintiff was another cousin who had come to Newark on December 12, 2010 to take plaintiff to New York. She indicated that she had conversations with plaintiff about defendant in the past but plaintiff never explained the nature of her problems with defendant. She indicated that in the week prior to December 12, 2010, plaintiff called her and asked if she could come to New Jersey to "pick [her] up." She remembered that plaintiff was crying and said defendant had "hit her" with a child's boot.

When she arrived at plaintiff's residence on December 12, 2010, plaintiff was not there, and so she went to the store where defendant worked and asked a man there to call defendant. Defendant told her on the phone that plaintiff was at the hospital. Plaintiff's cousin then went to the hospital where plaintiff was being treated for a "throat infection."

After plaintiff was released from the hospital, plaintiff's cousin took her back to the house to collect her luggage but defendant was there and indicated that the "children can't leave." Plaintiff then called defendant's brother who arranged for another brother of defendant to go to the house to help. Plaintiff's cousin, at this point, called the police and was waiting for their arrival. Defendant's brother had earlier said that "if you need to call the police, call the police." After defendant's brother arrived, plaintiff left with the children.

Defendant testified that he never struck plaintiff or called her names, but conceded they had argued because plaintiff accused him of having a girlfriend. Plaintiff thereafter testified briefly in rebuttal.

As noted earlier, the trial judge found that plaintiff had not proved her claims of domestic violence, nor her "past history" claims, by a preponderance of the evidence and dismissed the complaint and vacated the TRO. In support of this determination, the trial judge rendered an opinion from the bench on April 1, 2010, and later issued a supplemental written opinion.

In his findings of fact and conclusions of law issued from the bench, the trial judge indicated that he "does not believe the evidence in this record is sufficient to prove on a credible basis the required preponderance of the evidence to sustain the plaintiff's burden." He added that he had "significant difficulty with the credibility of the plaintiff." This determination was based on the judge's observations of the plaintiff's demeanor as well as inconsistencies he noted in the testimony. The judge observed that plaintiff would appear "tearful" when she knew she was being observed but "wouldn't be tearful" when she thought she was not being looked at. The judge found this to be an "effort to engender the sympathy of the court."

The judge also expressed concern about the delay between the alleged acts of domestic violence and the date that plaintiff moved out of the home. Moreover, the judge expressly discredited plaintiff's explanation about her failure to call police. Plaintiff had indicated that she did not call the police because she feared deportation. However, the judge noted that defendant's brother apparently told her to contact the police and that other relatives had actually contacted the police on her behalf. The judge further explained that he was presented with no photographs of any injuries to the plaintiff's body and was "never shown . . . hospital records" despite plaintiff's initial claim that she had received medical attention for the injuries she allegedly suffered.

Another factor affecting the credibility of plaintiff, in the judge's view, was the length of time that elapsed between the alleged incidents of domestic violence and plaintiff's filing for a protective order in New York. While plaintiff asserted she did not realize she could file an application for protection under New York law until after she had spoken to a representative of a support group in New York, "the court [was not provided with] records of any contact with this organization in New York to prove that this timeline was as . . . related to the court."

Lastly, the trial judge questioned the credibility of plaintiff's testimony that defendant threatened her with a weapon despite the fact that this allegation was not set forth in either the New York or New Jersey domestic violence complaints. He found that this omission diminished plaintiff's credibility.

In his later written opinion, the trial judge set forth in greater detail the basis of his conclusions. In the written opinion, the trial judge

finds that [plaintiff] failed to prove the predicate acts of assault, terroristic threats and harassment, and failed to prove the history of domestic violence alleged in the complaint and as amended at trial by a preponderance of the credible evidence. Specifically, the court finds that [plaintiff's] testimony and the testimony of her witnesses . . . was not credible and, based on their demeanor and the inconsistencies or implausibility of their testimony, the court does not credit the testimony of each of the witnesses supporting her case for separate reasons . . . . At the same time, for separate and independent reasons, the court deems [defendant] credible and credits his testimony.

The trial judge indicated that he "observed [plaintiff] contriving tears in an effort to invoke the court's sympathy" and found "portions of the substance of her testimony were farfetched and at times bordering on bizarre, leading the court to conclude her testimony was incredible." With respect to the text message, the judge noted that plaintiff conceded "the message may have been sent from her phone, but she did not send it. Rather, she alleged that her three children, ages two and four, played with her phone and sent the text." The judge found the explanation to be implausible.

Further, despite plaintiff's testimony that her body "hurt all over" as a consequence of the alleged assault on December 1, 2010, plaintiff "failed to testify that she sustained any bruises and no pictures were offered to the court regarding any injuries." The judge also noted plaintiff's inconsistent explanations as to whether she had actually sought medical care at a hospital after the alleged incident.

The judge observed that plaintiff lived across the street from a police station but did not report the alleged abuse to the police, and that her explanation for failing to seek assistance from the police "lacks credibility." The judge observed that plaintiff claimed she called the police in March 2011 to report that defendant left his clothes in the apartment and that several of plaintiff's relatives testified they had contacted the police on her behalf. The judge concluded that "if [plaintiff] was assaulted, her conduct reflects that she would have sought the protection of the police precinct across the street from the parties' residence, consistent with her past conduct and the conduct of her witnesses."

The judge also found that the testimony of plaintiff's cousin about the gap in time between the alleged acts of domestic violence and the date plaintiff was picked up from New Jersey was "not credible." The judge found that "this gap in time undermines the credibility of [plaintiff's] claim that she was abused and believed herself to be in imminent danger."

The judge also found credible defendant's testimony that the parties did not argue in December 1, 2010, but that there had been an argument earlier about his alleged relationship with "another woman." The judge determined that plaintiff's testimony and that of her witnesses with regard to alleged past acts of domestic violence was likewise without credibility.

On appeal, plaintiff raises the following arguments:

THE TRIAL COURT IMPOSED AN ONEROUS STANDARD OF PROOF BEYOND THAT REQUIRED BY THE ACT

IN ASSESSING THE EVIDENCE THE TRIAL COURT RELIED UPON LEGALLY DISCREDITED ASSUMPTIONS AND STEREOTYPES REGARDING DOMESTIC VIOLENCE AND MADE CONCLUSIONS NOT SUPPORTED BY THE RECORD

A. The trial court erred in concluding that [plaintiff's] testimony regarding abuse was not credible because she never called the police

B. The trial court erred in concluding that [plaintiff's] testimony regarding abuse was not credible because she returned to her abusive relationship and delayed leaving after the December 2010 incident

C. The court erred in concluding that [plaintiff's] family's conduct was inconsistent with serious violence because they did not do more to intervene

D. The court erred in failing to consider how trauma can impact a victim's presentation of evidence and demeanor

THE TRIAL COURT INAPPROPRIATELY RELIED UPON AN UNAUTHENTICATED TEXT MESSAGE NOT PROPERLY ENTERED INTO EVIDENCE

III

Our scope of review of the trial court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). A trial court's findings of fact should be upheld if they are supported by "'adequate, substantial and credible'" evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988)(quoting Rova Farms, supra, 65 N.J. at 484). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify', it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Id. at 33 (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family courts' factfinding." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or the legal consequences that flow from established facts. Manalapan Realty L.L.C. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

We do not find that the trial judge imposed an onerous standard of proof upon plaintiff or that he required documentary evidence to support her claims. N.J.S.A. 2C:25-29(a) provides that the standard for proving allegations in a complaint for domestic violence "shall be by a preponderance of the evidence." The oral and written opinions of the trial judge explicitly applied the preponderance of the evidence standard required by statute.

Further, the statute does not specify the types of evidence that are admissible or inadmissible in a domestic violence proceeding. In our view, the Legislature adopted this standard recognizing that evidential issues in New Jersey are governed by the New Jersey Rules of Evidence.

N.J.R.E. 402 provides "all relevant evidence is admissible." N.J.R.E. 401 defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." The test for relevance is broad and favors admissibility. State v. Deatore, 70 N.J. 100, 116 (1976). "In determining whether evidence is relevant, the inquiry should focus on 'the logical connection between the proffered evidence and a fact at issue.'" State v. Darby, 174 N.J. 509, 519 (2002)(quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Moreover, "[i]f the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excludable by a rule of law." State v. Covell, 157 N.J. 554, 565 (1999).

Weighing evidence and undertaking the "delicate task" of determining whether a party's actions constitute domestic violence under the statute is the function of a trial court. See Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995). Not only do we accord the trial court special deference in Family Part matters, Cesare, supra, 154 N.J. at 413, we also will not "second-guess [Family Part judges' factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007)(citing Cesare, supra, 154 N.J. at 413).

We do not find that the trial judge abused his discretion in remarking upon the absence of any documentary proof in assessing the credibility of plaintiff and her witnesses. A review of the opinions rendered by the trial judge supports the conclusion that the absence of documentary proof was merely a factor he considered and was not dispositive in any way. Consequently, this claim is without merit.

These observations apply, as well, to plaintiff's claims that the trial judge also relied upon "legally discredited assumptions and stereotypes regarding domestic violence." The subjects of delayed reporting and failure to call the police were actually raised by plaintiff's counsel in her direct examination of plaintiff during the hearings. We recognize that delayed reporting of domestic violence, failure to notify police, and the effect of trauma upon a victim of violence are subtle issues requiring a nuanced and understanding evaluation by a trial judge. We have no reason to believe that the trial judge did not evaluate all of the evidence in this manner. We do not find that the judge's evidential determinations were either an abuse of discretion or a clear error in judgment. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).

Finally, we do not find plaintiff's assertion of error as to the text message to have sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

The trial judge did not accord substantial weight to the text message and it was not a critical factor in his credibility findings. Thus, even if we were to agree with plaintiff that the admission of the text message was in error, it was not "clearly capable of producing an unjust result." R. 2:10-2.

Affirmed.

Thursday, February 23, 2012

Domestic Violence, M.J.K. v. R.M.K., A-4098-10T3

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4098-10T3

M.J.K.,

Plaintiff-Appellant,

R.M.K.,

Defendant-Respondent.

_____________________________________

January 24, 2012

Submitted January 9, 2012 - Decided

Before Judges Alvarez and Skillman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-002121-11.

Raymond Laytham, attorney for appellant.

Rick Silver, attorney for respondent.

PER CURIAM

This is an appeal from a final judgment in an action brought under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which concluded that although defendant had committed predicate acts of harassment upon plaintiff, a final domestic violence restraining order was not necessary to protect plaintiff.

Plaintiff and defendant were married in 1999. They separated and stopped living together in October 2007. Two children were born of the marriage, who were five and nine when this case was tried. Plaintiff has residential custody and defendant has substantial parenting time.

During the period between February 13 and March 8, 2011, defendant made 188 documented telephone calls and text messages to plaintiff.[1] Plaintiff estimated that only twenty of these communications related to defendant's parenting time and that the rest were intrusions into plaintiff's personal business, specifically, efforts by defendant to find out where plaintiff was, who she was with, and what she was doing.

Defendant also sent three text messages to plaintiff during the early evening hours of February 22, 2011, which contained the following threats of violence toward her boyfriend:

If your boy talks shit about me again to one more person he's not going to leave here alive.

3 different people came up to me said he was talking shit. I didn't ask exactly what was said because I would have punched him in the face right then and there.

I'm dead serious. If I hear my name or the kids['] name come out of his at anytime even in the future I will hurt him.

In addition, defendant text messaged a pornographic photograph of his private parts to plaintiff.

Defendant did not deny that he had made the telephone calls and sent the text messages about which plaintiff testified. However, defendant claimed that more than twenty of his telephone calls to plaintiff related to his parenting time and that most of the calls were motivated by concern for his children. In particular, he objected in many of his communications to plaintiff living with a drug addict who had stolen some of the children's support money.

Plaintiff acknowledged that the boyfriend who had been living in her house with the children was a drug addict and that he had stolen money from her. Plaintiff testified that when she found out this information, she "kicked him out and

. . . never let him back in the house." However, she admitted continuing her relationship with this person up to the time defendant made the telephone calls and text messages that were the subject of her domestic violence complaint. Plaintiff also admitted lying to defendant about her continuation of this relationship:

THE COURT: Well, you told him you weren't seeing him anymore, you weren't telling this defendant the truth with respect to the relationship? Were you?

THE WITNESS: No.

THE COURT: He didn't believe you? He thought you were lying to him? The defendant did, correct?

THE WITNESS: Yes.

THE COURT: And it annoyed you about what he believed was a lie, your seeing this person? Correct? He harassed you and kept calling you about it because he didn't believe you? He said I know you're seeing him, you say you're not but I know you are, stop lying to me. That's basically what he did, isn't it? From September, October on? Is that correct?

THE WITNESS: Even -- yes.

Based on this evidence, Judge Charles concluded that defendant had committed acts of harassment against plaintiff, in violation of N.J.S.A. 2C:33-4(c). However, the judge concluded that there was no need for issuance of a final restraining order to prevent future acts of domestic violence. In reaching this conclusion, the judge stated:

. . . There is nothing in the record that indicates that this defendant during the course of the marriage from 1999 forward to 2007 was physically abusive to this plaintiff. There is no testimony of this plaintiff being subjected to physical violence by this defendant, there's no record, no allegation of that and nothing in the testimony to indicate that.

. . . .

The acts that were proved, the predicate acts that were proved in this case, communications, . . . were of a non-physical nature. They were harassing but they were not of a physical kind and in fact the record indicates that it was about parenting time in part, in part about this defendant's belief about what was not in his children's best interest, that is that there was a boyfriend involved who . . . had issues, one of which apparently was substantiated, he stole money from the children. That would cause a reasonable person to have some concern . . . about the person who was around his children.

. . . .

This Court finds that under the context, the whole totality [of] circumstances of this case involving no physical violence currently, no past history of physical violence[,] involving verbal communications that were offens[ive] and harassing[,] that a final restraining order is not necessary to prevent another act of domestic violence

On appeal, plaintiff presents the following arguments:

POINT I:

THE TRIAL COURT WAS WRONG TO DENY THE FINAL RESTRAINING ORDER AS A RESULT OF THE DEFENDANT'S EXCESSIVE PHONE AND TEXT MESSAGES.

POINT II

THE DEFENDANT'S SENDING OF MESSAGES THREATENING TO CAUSE HARM TO THE PLAINTIFF'S BOYFRIEND IS SUFFICIENT FOR A FINAL RESTRAINING ORDER

POINT III:

THE DEFENDANT'S SENDING OF A PORNOGRAPHIC PHOTOGRAPH OF HIS OWN ERECT PENIS IS SUFFICIENT FOR A FINAL RESTRAINING ORDER.

We reject these arguments substantially for the reasons set forth in Judge Charles' March 21, 2011 oral opinion. We add the following supplemental comments.

Under the Prevention of Domestic Violence Act, "acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2)." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Therefore, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not "automatically mandate[] the issuance of a domestic violence restraining order." Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Eagen, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to "whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence." Id. at 128. Our review of such a determination is limited to deciding whether it constituted an abuse of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998). We are satisfied, substantially for the reasons stated by Judge Charles, that his determination that a final domestic violence restraining order was not necessary in this case did not constitute an abuse of discretion.

Affirmed.

[1] A complaint for divorce had not yet been filed at that time. However, plaintiff's brief indicates that she filed a complaint for divorce on March 9, 2011, which is still pending.

Tuesday, February 14, 2012

MARGARET DUCEY VS. STEPHEN DUCEY A-1066-09T3

 MARGARET DUCEY VS. STEPHEN DUCEY           A-1066-09T3

     Without addressing the parties' arguments on the merits of the substantive challenges to the amended final judgment of divorce (JOD) in this matrimonial matter, we are constrained to reverse, as we reject the procedure employed by the trial judge, who, after presiding over a fourteen-day trial, entered a final JOD advising the court's "underlying opinion will be sent shortly."  Several months later, when the trial judge released the reasoning for her prior determinations, the substantive provisions diverged significantly from those in the JOD and counsel was ordered to prepare an amended JOD.  Although the trial judge included factual findings for many of the conclusions set forth in the amended JOD, no explanation was given for the wholesale alteration of the initially ordered

provisions in the JOD.  We reject any suggestion that the trial judge's actions in this regard fall within her reasoned discretion, as discussed in Lombardi v. Masso, 207 N.J. 517 (2011).  Accordingly we reverse and remand for a new trial before a different Family Part judge.  02-02-12

Sunday, January 29, 2012

judge must make findings FRO to prevent abuse

DataSUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2095-10T1

M.J.,

Plaintiff-Respondent,

A.J.,

Defendant-Appellant.

_______________________________

November 10, 2011

Submitted October 24, 2011 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-918-11.

Arons & Solomon, P.A., attorneys for appellant (Patricia Speake Martin, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Defendant husband appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). We reverse and remand for a new FRO hearing.

The parties are married and have an eleven-year-old daughter and a six-year-old son. On November 1, 2010, the wife filed a domestic violence complaint against her husband for criminal mischief, N.J.S.A. 2C:17-3(a)(1). She alleged that her husband yelled, cursed, and caused damage to a kitchen wall in their residence. A municipal court judge entered a temporary restraining order, barred the husband from the marital residence and from visiting his children, and scheduled the FRO hearing.

On November 9, 2010, a Family Part judge conducted the hearing. The parties appeared without attorneys and the judge asked the wife to explain what occurred. She explained that after they had hosted a Halloween party, she decided to sleep on a couch in the basement because her husband had been drinking and she needed rest. The wife testified that her husband then became enraged and started yelling and cursing. After they talked in the basement, he walked outside and she went to their bedroom. The husband returned and the wife believed that he went into the living room. After that, she walked into the kitchen and noticed that there "was a crack in the sheetrock." She called 911, and the police arrived and arrested the husband.

The husband testified that his wife had also been drinking during the party. He admitted that he was aggravated because she wanted to sleep on the couch. The following exchange then occurred between the judge and the husband:

The court: [W]hat happened in this case is that . . . they marked this criminal mischief for putting . . .

The husband: Can I . . .

The court: - - the hole in the sheetrock.

The husband: Can I explain that?

The Court: No, you don't even have to.

The husband: I mean, the - - the only - -

. . . .

The court: Don't talk anymore, just let me . . . explain this to you. She's proven . . . that you scared the heck out of her[.] I find that . . . you harassed her, that's harassing to be that frightening and to scare a person as badly as she was scared.

After the judge made that finding, the wife added that she believed her husband had a drinking problem and anger management issues. The judge then stated:

[T]here's a lot of drunks, a lot of alcoholics, that's the nice word for it, who are docile. There's a lot of alcoholics who you couldn't get them into a fight.

That is an infliction and maybe [the husband is] going to have to find a way back into your trust, because I'm going to enter a permanent - - I'm going to make this a final order.

The judge barred any direct communication between the parties, but offered to the wife the opportunity to have telephone contact with her husband, which she declined. The judged asked the wife what visitation she believed would be appropriate for the husband and their children. The judge then imposed a requirement that the husband have no alcohol ten hours before visitation "[s]o he can't show up drunk[.]" The judge indicated that the parties had to return to court to address permanent visitation and child support. Finally, the judge advised that he could not "force [the wife] to file . . . for a divorce, but if [she did] file for divorce, [a different court would] take jurisdiction over all of these matters, except for the restraining order."

On appeal, the husband contends that the judge failed to (1) provide a fair hearing; (2) find that a predicate act of domestic violence occurred; and (3) find that an FRO was necessary to protect the wife from immediate danger or to prevent future harm. Defendant argues that the cumulative errors warrant a reversal.

Trial court fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial court sees witnesses firsthand and has a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

Nonetheless, when determining whether to grant an FRO pursuant to the Act, the judge must make two determinations.Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). See also Cesare, supra, 154 N.J. at 402-05. "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." Silver, supra, 387 N.J. Super. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

Here, the wife alleged in the complaint that the husband engaged in the predicate act of criminal mischief, N.J.S.A.2C:17-3(a)(1), of which a person is guilty if he or she "[p]urposely or knowingly damages tangible property of another."However, the judge made no findings of fact concerning these elements. Rather, he essentially expanded the domestic violence complaint to include an allegation of harassment under N.J.S.A. 2C:33-4(a), which provides in part that

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[.]

Trial judges may not "'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. v. M.D.F., 207 N.J. 458, 478-79 (2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003)) (internal quotation marks omitted). Here, the domestic violence complaint alleged criminal mischief; it did not allege harassment and therefore did not afford defendant notice of or adequate opportunity to prepare for a harassment allegation, as due process requires. Id. at 478; H.E.S., supra, 175 N.J. at 321.

Next, there must also be a finding that "'relief is necessary to prevent further abuse.'" J.D., supra, 207 N.J. at 476 (quotingN.J.S.A. 2C:25-29(b)); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011). It is well-established that commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [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). The determination whether such an order should be issued must be made "in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse and in light of whether immediate danger to the person or property is present." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29(a)(1) and (2)); Peranio, supra, 280 N.J. Super. at 54. Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

Here, the judge made no finding that the FRO was necessary to protect the wife from immediate danger or to prevent further abuse. Rather, he assumed that the husband had an alcohol problem, issued the FRO, and imposed conditions on temporary visitation with the children.

We reverse, remand, and direct that a new FRO hearing be conducted on an expedited basis. Pending the scheduling of the hearing, the FRO will remain in place. We do not retain jurisdiction.