D.C., Plaintiff-Respondent, v. J.E.C., Defendant-Appellant.

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Superior Court of New Jersey, Appellate Division.

D.C., Plaintiff-Respondent, v. J.E.C., Defendant-Appellant.

DOCKET NO. A-3080-08T3

Decided: July 23, 2010

Before Judges C.L. Miniman and Waugh.

Defendant J.E.C. appeals from a Final Restraining Order (FRO) entered on January 13, 2009, restraining him from having any contact with plaintiff D.C. and barring him from her places of residence, employment, and worship, and further requiring supervised visitation with the parties' two children.   We reverse and remand for a new trial.

On December 29, 2008, plaintiff filed a domestic violence complaint alleging that on December 28, 2008, at 7:52 p.m.:

Defendant engaged victim in a verbal altercation.   During the argument, and at other times, defendant whispered in victim[']s ear, “I'm going to get you.”   Victim states defendant has been making this threat often.   Victim also states defendant spit on her approximately one year ago.

Plaintiff asserted these acts constituted terroristic threats contrary to N.J.S.A. 2C:12-3 or harassment contrary to N.J.S.A. 2C:33-4.   She represented that there was no prior history of domestic violence.   She revealed the pendency of a dissolution action between the parties.   A temporary restraining order (TRO) was entered upon the filing of the complaint, which was served on defendant the following day.   Defendant was notified that a final hearing was scheduled for January 8, 2009.

Defendant appeared pro se on the scheduled date at which time plaintiff's attorney elicited testimony from plaintiff and her witness, both of whom defendant cross-examined.   Defendant was then examined by the judge and cross-examined by plaintiff's attorney.   The hearing continued on January 13, 2009, when defendant elicited testimony from his brother, who plaintiff's attorney cross-examined.

With respect to the events of December 28, 2008, plaintiff testified she was in the marital home while defendant visited his children.   She was required to supervise visitation.   He had been making her nervous during the visit by coming up behind her every time he went out for a cigarette.   He took a premarital file from the basement closet, put it in his car, and then denied taking anything out of the house.   Around 8:00 p.m., defendant wanted some files that were locked in a file cabinet.   She gave him the key and called her sister to have her on the telephone while she interacted with defendant;  defendant called his brother for the same reason.

Plaintiff asked defendant not to remove anything from the file cabinet, but rather to stack them up, and she would photocopy them.   He insisted on taking them, and she suggested that they wait until a neutral party was present so they could go through the files together.   Defendant refused, stood up abruptly, and stepped toward her with the files in his hands.   Plaintiff said, “[Y]ou know what -- my sister was on the phone, and she said, you ․ need to call the police.   This is getting too ․,” and plaintiff hung up the phone and called the police.   After reciting a litany of concerns about his behavior over the past two years, none of which involved any physical abuse or terroristic threats, plaintiff testified that defendant said “I'm going to get you” on December 28.   Although she did not know what that meant and did not want to know, she believed he would harm her.

Plaintiff's sister testified that on December 28 she was speaking by telephone with her sister and overheard defendant ask to go through some files.   She heard her sister say she would give him the keys to the file cabinet.   She then heard defendant say that he wanted to take some files and plaintiff say that he should make a pile of the files he wanted and she would copy them.   Defendant responded that he would take whatever he wanted and there was nothing she could do about it.   She then heard plaintiff say, “Johnny, don't push near me” and then say they should have a neutral party supervise review of the files.   She told plaintiff to tell defendant to leave and then heard defendant speaking to his brother, complaining that plaintiff was “getting very aggressive.”   As a result, she told plaintiff that defendant was messing with her and she should call the police.   She did not testify that she heard defendant say that he “would get” plaintiff.

Defendant testified that on December 28, 2008, he had been asking to look at the files off and on all day and it was not until 8:00 p.m. that plaintiff handed him the keys to the file cabinet.   He told her what files he would take and then selected seven or eight folders.   Then he heard plaintiff's sister on the telephone telling plaintiff not to let him take the file folders.   This precipitated an argument over the files while both parties were on their telephones speaking with their respective siblings.   Defendant could hear plaintiff's sister screaming at her to call the police, and when plaintiff did so, he did also.   He denied whispering in her ear that night.

After summations, the judge placed a lengthy decision on the record.   He found plaintiff to be very credible, but found defendant less credible due in part to his demeanor in the courtroom, but more particularly, because there was “an admitted gambling problem dealing with bookies and other issues.”   He noted defendant's response to plaintiff's testimony about a big white Cadillac parking in front of their house, causing her fear and concern, which defendant suggested might have been a security clearance team for his civilian military job.   He also noted defendant's denial of a control factor, but that denial was impeached by a letter he wrote to his wife at some time in the past, wherein he admitted that he was telling her things to throw her off the track about what he was doing and further admitted he was playing mind games with her.   The judge found defendant would say to plaintiff, as part of the mind game, “No, don't hit me, don't hurt me.”

The judge then found on December 28, 2008, defendant used certain words like “bitch” and then at one point whispered in her ear, “I'm going to get you.”   Defendant did this when he “stood up, took a step towards her, which put her in fear of her safety, [and] came within her personal space.”   The judge noted that plaintiff admitted she did not know exactly what that meant.   However, the judge found that meaning could be infused into that comment from the “past history in this case.”

The judge considered an incident in 2007 when the parties agreed to purchase toy guns for their two- and four-year-old children and defendant then ordered them.   When they arrived, the plaintiff returned them.   The judge found,

The size of the gun in the picture of the toy gun he picked out is shocking as what would be provided.   It's not age appropriate.   The gun ․ says overall length, 850 millimeters, with accompanying bullets[,] ․ five millimeters BB bullet.

The picture of the gun shows a laser on it with a light.   Clearly not the toy gun that people play cops and robbers with when they were children, but something that could pass for an authentic military style assault weapon that could clearly be confused as being very authentic.

The judge found “this picture shows the beginning of what appears to be somewhat of an obsession, which started the fear.”

After the guns were returned, the judge found the plaintiff began to notice “some very strange behavior, which caused her some concern” after defendant returned from the Middle East where he had been a civilian employee of the military.   Defendant began calling the family car “the vehicle,” used military time, and said “affirmative” or “negative” for “yes” and “no.”   When the children asked for ice cream, he would instead use a military knife to cut up a mango.  “[T]his increased involvement or sensation with the military and the weapons caused [plaintiff] some forethought as to what was going on.”   The judge noted that this was not causing plaintiff any danger or damage at that point in time, but he was required to look at the totality of circumstances:

When you factored in the prior mind games that were being played in [defendant's letter], about how it was him trying to make her nuts.   How it was now him whispering into her ear that ․ he would get to her or he would get her.   Tie all that in with the military changes in his normal or average civilian life, it caused her a moment of pause and concern as to wait, now I've got to comment where we've crossed the line.   And although he hasn't hit me, I'm now afraid that this is where it's crossed because the communication has been made, so only I can hear it, that I'm going to get you.

That, tied in with the peculiar behavior and some past incidents of spitting at her, as she had testified to, of throwing -- granted it was an olive, nonetheless, but it was still an object, in December of '07, that was thrown at her.   Prior whispers in the ear of prior private comments, if you will, that caused her concern.

And then having all this taken in the totality of the circumstances with the parties clearly being argumentative, all exploded on the night of 12-28 when they were arguing over files ․ when the mind games again started and he wanted to remove the files from the house.   She said no, make a pile, I'll photocopy them.   He said no.

She was on the phone with her sister.   She said to leave.   And it was at that point in time that nothing bad happened, but the comment in fact was made ․ in her ear, because the sister was on the phone.   She testified in court that she told her to call the police and make him leave.

So you need to look at this case from the totality of the circumstances.   And you need to look at this case from the domination and control factor that in fact had been going on between the parties.

From this, the judge concluded that defendant had the purpose to make the communication and the comments “albeit ․ ambiguous, but clear enough to the point that she understood the meaning, was a communication that was made with the purpose to harass.”   The judge further found that “[t]he purpose to harass was in making that communication in a manner likely to cause annoyance or alarm.”   He specifically noted that he arrived at this from “the total prior history and the total circumstances surrounding this case between the parties” and cited another example of prior acts demonstrating that defendant was showing how he was in control of what was going to happen.   He found plaintiff's life, health, and safety to be in jeopardy, although he concluded that she had not proven terroristic threats.

Finally, the judge found that there was clear animosity between the parties and that defendant was capable of carrying out “any one of the mind game threats that he decides to whisper in her ear at any time.”   He found defendant had some temperament issues causing the judge concern about future harm.   He concluded a restraining order was necessary because of the concerns plaintiff expressed about defendant and entered the FRO that day.   This appeal followed.

Defendant contends on appeal that his fundamental due process rights were violated when the judge entered an order based largely on acts not alleged in the complaint.   He further urges the events of December 28, 2008, were more ordinary “domestic contretemps” than domestic violence, requiring dismissal of the FRO.

Appellate review of a trial judge's fact-finding function is circumscribed-- such findings are binding on appeal if supported by adequate, substantial, and credible evidence.  Cesare v. Cesare, 154 N.J. 394, 411-12 (1998);  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).   Judges that “hear the case and see the witnesses ․ are in a better position to evaluate the credibility and weight to be afforded testimonial evidence.”   N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J.Super. 77, 89 (App.Div.2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999);  Pascale v. Pascale, 113 N.J. 20, 33 (1988)).  “Where the issue to be decided is an ‘alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,’ we expand the scope of review.”  N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted).   However, even in this latter instance, we will “nonetheless accord deference to the trial court's findings unless they ‘went so wide of the mark that a mistake must have been made.’ ”  MacKinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S.Ct. 7, 168 L. Ed.2d 784 (2007).

The Supreme Court has observed that matrimonial courts possess special expertise in the field of domestic relations.  Cesare, supra, 154 N.J. at 412.  “Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact [-]finding.”  Id. at 413.   While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not “second-guess [a Family Part judge's factual] findings and the exercise of their sound discretion.”  Hand v. Hand, 391 N.J.Super. 102, 111 (App.Div.2007).

When the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 (the Act), was adopted, the Legislature declared that “domestic violence is a serious crime against society” because “there are thousands of persons ․ who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants.”  N.J.S.A. 2C:25-18.   Thus, “the focus of the Legislature was regular serious abuse between spouses.   That this is so is underscored by the references to torture, battery, beatings, and killing in the findings.”   Corrente v. Corrente, 281 N.J.Super. 243, 247 (App.Div.1995);  Peranio v. Peranio, 280 N.J.Super. 47, 53 (App.Div.1995).

The Legislature intended the Act “ ‘to assure the victims of domestic violence the maximum protection from abuse the law can provide.’ ”  Peranio, supra, 280 N.J.Super. at 53 (quoting N.J.S.A. 2C:25-18).   Further, the Legislature

stress[ed] that ․ it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public.   To that end, the Legislature ․ encourages the broad application of the remedies available under this act in the civil and criminal courts of this State.   It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.

[N.J.S.A. 2C:25-18.]

The term “victim of domestic violence” encompasses persons protected under the Act and includes a victim who is married to the actor, as here.  N.J.S.A. 2C:25-19d.

The Act permits a victim to “file a complaint alleging the commission of an act of domestic violence with the Family Part.” N.J.S.A. 2C:25-28a.   The victim “may seek emergency, ex parte relief in the nature of a[TRO].” N.J.S.A. 2C:25-28f.   A decision on such an application must be made forthwith.  N.J.S.A. 2C:25-28g.   The complaint and TRO are to be immediately forwarded to the appropriate law enforcement agency for service on the defendant and immediately so served.  N.J.S.A. 2C:25-28l.

The court must hold a hearing within ten days of the filing of the complaint.  N.J.S.A. 2C:25-29a.  “At the hearing the standard for proving the allegations of the complaint shall be by a preponderance of the evidence.”  Ibid. The court is required to consider six classes of evidence, including “[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse.”  N.J.S.A. 2C:25-29a(1).

The proceeding under the Act is a summary action.  Depos v. Depos, 307 N.J.Super. 396, 399 (Chan.Div.1997) (holding the defendant has no right to take the deposition of the plaintiff).   The defendant's due process right to adequate “ ‘notice defining the issues and an adequate opportunity to prepare and respond’ ” is nonetheless protected.  H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (internal citation omitted)) (finding less than twenty-four hours notice before hearing and denial of continuance violated due process).   Yet, the statutory requirement for a hearing within ten days passes constitutional muster as according adequate due process, especially where the judge is empowered to grant a continuance.  Crespo v. Crespo, 408 N.J.Super. 25, 43-44 (App.Div.2009), aff'd o.b., 201 N.J. 207, 209-10 (2010);  see also H.E.S., supra, 175 N.J. at 323 (“ ‘ten-day provision does not preclude a continuance where fundamental fairness dictates allowing ․ additional time’ ”) (quoting H.E.S. v. J.C.S., 349 N.J.Super. 332, 342-43 (App.Div.2002)).

Because “ ‘notice defining the issues,’ ” H.E.S., supra, 175 N.J. at 321, is an important component of the protections afforded to a defendant's due process rights, we have held that “it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint.”  L.D. v. W.D., 327 N.J.Super. 1, 4 (App.Div.1999).   There, in part because “[m]uch of the testimony was outside the four corners of [the] plaintiff's domestic violence complaint,” and “the hearing judge apparently felt unrestricted by the allegations set forth in [the] plaintiff's complaint,” we reversed the FRO. Id. at 3-4, 6. See also J.F. v. B.K., 308 N.J.Super. 387, 391-92 (App.Div.1998) (finding domestic violence based on a course of prior conduct that is not even mentioned in the complaint “constitutes a fundamental violation of due process”).   This is so because the defendant cannot “prepare a defense to charges that he was not even told about until the day of the hearing.”  Id. at 392.

The difficulty we have with the judge's fact-findings is not that they are unsupported by the evidence adduced at trial, but rather that the evidence was adduced at all.   The plaintiff specifically represented in her verified complaint that there was no prior history of domestic violence, yet she was allowed to testify to some wide-ranging behaviors over a two-year period notwithstanding defendant's objections on grounds of relevancy.   This was a fundamental due process violation of defendant's right to adequate notice of the issues, mandating a reversal of the FRO, but not the TRO initially issued in this case, which is herewith reinstated.

Defendant also contends that the acts alleged in plaintiff's complaint are nothing more than domestic contretemps not worthy of the protections of the Act, relying on N.B. v. T.B., 297 N.J.Super. 35, 40-41 (App.Div.1997).   We cannot say as a matter of law that this is so on the record before us.

Because the judge here decided issues of credibility and may be committed to his views of the evidence in light of those determinations, on remand the matter shall be assigned to another Family Part judge for a new trial.   R. 1:12-1(d).

Reversed and remanded for a new trial;  the temporary restraints remain in place.

PER CURIAM

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