L.M., Plaintiff–Respondent, v. J.B., Defendant–Appellant. (2013)

Defendant J.B. appeals a final restraining order (FRO) entered in favor of his ex-wife, plaintiff L.M., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25–17 to –35, arguing, among other things, that the judge's finding that defendant made a harassing communication was against the weight of the evidence and that the judge failed to determine whether an FRO was required to avoid further domestic violence, as required by Silver v. Silver, 387 N.J.Super. 112, 127 (App.Div.2006).   We reject the former but agree with the latter argument and remand for additional findings.

The parties were married, had three children and divorced prior to the event in question.   After an earlier unsuccessful domestic violence action,¹ plaintiff filed her complaint in this matter on August 6, 2012, alleging that at 5:01 p.m. the day before, she received a telephone call from her eight-year-old daughter's cellphone.   When she answered, she heard defendant say:  “Here's Johnny,[ ² ] you'll be lucky if I don't fucking kill you and make it look like an accident.”   She did not answer a second call that followed approximately one minute later.   A temporary restraining order was entered the same day the complaint was filed, and a trial on the merits was conducted on August 14, 2012, at which time plaintiff presented her own testimony and that of the parties' thirteen-year-old daughter;  defendant and his girlfriend, C.P.,³ testified in response.

Defendant denied making the telephone call.   To demonstrate it was either impossible or highly unlikely that he could have made the call, defendant testified that he was not home but instead entered a gym, which was a ten-minute drive from his home, at 4:33 p.m.⁴ C.P. testified she was watching the parties' eight-year-old daughter at defendant's home, that the child used her cellphone to take photographs between 4:53 and 4:55 p.m., as the cellphone's records suggest, and that defendant was not present in their home and therefore unable to make a call on that cellphone at 5:01 p.m.

The judge recognized that defendant's suggested timeline, if believed, posed problems for plaintiff's claim that defendant made the telephone call in question, but nevertheless concluded plaintiff was credible and an act of domestic violence had occurred.   Indeed, we note that despite the recordation of defendant's gym identification being used at 4:33 p.m. at a location ten minutes away from his home, and despite the fact that the cellphone was used to take photographs at 4:53 through 4:55 p.m. on the cellphone used to make the calls to plaintiff's cellphone at 5:01 and 5:02 p.m., defendant's version is dependent upon his and C.P.'s credibility.⁵

In his oral decision, the judge found that plaintiff was credible;  in a later letter amplifying his decision, the judge stated that he found defendant incredible.   We are obligated to defer to a judge's findings of fact, particularly the credibility findings, when supported by adequate, substantial and credible evidence.  Cesare v. Cesare, 154 N.J. 394, 413 (1998);  Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).   In addition, Family judges are entitled to further deference in light of their expertise in such matters.  N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010).   We intervene only “when the trial court's conclusions are so ‘clearly mistaken’ or ‘wide of the mark’ ” to “ensure that there is not a denial of justice.”  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

We are not persuaded by defendant's forceful arguments that there is something wrong with the judge's findings.   To the contrary, the judge relied upon plaintiff's credibility, recognizing that defendant's version, despite the ostensible support of electronic evidence as to entry into a gym and the time of cellphone photographs, does not necessarily support what defendant essentially argues to us—that it was not possible for him to make the call in question.⁶

Although the domestic violence act was alleged to be a terroristic threat, the judge interpreted it as an act of harassment but beyond what cases refer to as ordinary domestic contretemps, see, e.g., Corrente, supra, 281 N.J.Super. at 250;  Peranio, supra, 280 N.J.Super. at 56, because defendant's words constituted, in reference to N.J.S.A. 2C:33–4(c), what the judge described as “a deliberate attempt to annoy or alarm” plaintiff.   This represents a common sense approach to the facts as the judge found them.

Despite the sufficiency of these findings, we nevertheless remand solely for further findings on a matter the judge neither expressly reached nor implicitly found.   That is, the judge must find not only that the plaintiff is a “victim of domestic violence,” N.J.S.A. 2C:25–19(d), and the defendant committed a predicate act, N.J.S.A. 2C:25–19(a)—both of which were found here—but also that an FRO “is necessary ․ to protect the victim from an immediate danger or to prevent further abuse.”  Silver, supra, 387 N.J.Super. at 127;  see also S.K. v. J.H., 426 N.J.Super. 230, 232 (App.Div.2012).   The judge did not make findings on this last point and, for that reason, we remand.⁷  The judge may, if he deems it necessary, hear additional testimony on this point or he may simply make whatever finding he believes is appropriate on this question based on the testimony he previously heard.

Defendant also argues that the trial judge erred in denying a post-trial motion for a new trial for consideration of what the parties' eight-year-old child might provide on the matter had she been called to testify or had she been interviewed by the judge in camera.   We find insufficient merit in this argument to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).

Remanded for further findings in conformity with this opinion.   The court retains jurisdiction.   The remand proceedings are to be completed within thirty days.

FOOTNOTES

FN1. Plaintiff filed a domestic violence action the prior month, alleging defendant made threatening gestures and communications and improperly entered the former marital home.   At the final hearing on July 25, 2012, the judge dismissed the action after plaintiff completed her testimony.   The judge properly assumed the truth of plaintiff's testimony but concluded the gestures and communications were, at best, only domestic contretemps, similar to the circumstances found insufficient in Corrente v. Corrente, 281 N.J.Super. 243, 250 (App.Div.1995), and Peranio v. Peranio, 280 N.J.Super. 47, 56 (App.Div.1995).   This was not a finding that the alleged acts did or did not occur.   It is, therefore, not inappropriate for the judge to consider in this later domestic violence action, in complying with our remand, whether the earlier alleged events actually occurred.   See T.M. v. J.C., 348 N.J.Super. 101, 106 (App.Div.), certif. denied, 175 N.J. 78 (2002)..  FN1. Plaintiff filed a domestic violence action the prior month, alleging defendant made threatening gestures and communications and improperly entered the former marital home.   At the final hearing on July 25, 2012, the judge dismissed the action after plaintiff completed her testimony.   The judge properly assumed the truth of plaintiff's testimony but concluded the gestures and communications were, at best, only domestic contretemps, similar to the circumstances found insufficient in Corrente v. Corrente, 281 N.J.Super. 243, 250 (App.Div.1995), and Peranio v. Peranio, 280 N.J.Super. 47, 56 (App.Div.1995).   This was not a finding that the alleged acts did or did not occur.   It is, therefore, not inappropriate for the judge to consider in this later domestic violence action, in complying with our remand, whether the earlier alleged events actually occurred.   See T.M. v. J.C., 348 N.J.Super. 101, 106 (App.Div.), certif. denied, 175 N.J. 78 (2002).

FN2. Plaintiff testified that she understood defendant was invoking the famous line from Stanley Kubrick's The Shining (1980).   In that film, the protagonist, Jack Torrance, chased his wife with murderous intent through the corridors of an empty hotel until cornering her in a small room with only a locked wooden door between them.   After chopping a hole in the door with an axe, Jack peered through the opening and announced, “Here's Johnny.”   We add this only because, if plaintiff's understanding of the statement is correct, an added element of threatened violence is suggested..  FN2. Plaintiff testified that she understood defendant was invoking the famous line from Stanley Kubrick's The Shining (1980).   In that film, the protagonist, Jack Torrance, chased his wife with murderous intent through the corridors of an empty hotel until cornering her in a small room with only a locked wooden door between them.   After chopping a hole in the door with an axe, Jack peered through the opening and announced, “Here's Johnny.”   We add this only because, if plaintiff's understanding of the statement is correct, an added element of threatened violence is suggested.

FN3. The judge found, as C.P. testified, that she was more than just a “girlfriend.”   He found that she and defendant “live together” in “a marriage type relationship.”.  FN3. The judge found, as C.P. testified, that she was more than just a “girlfriend.”   He found that she and defendant “live together” in “a marriage type relationship.”

FN4. Defendant offered unauthenticated gym records, which the judge admitted into evidence despite recognizing the records' inadmissibility, that suggest defendant's membership card was swiped at 4:33 p.m. The record actually suggests defendant's entry as occurring at 1:33 p.m., but defendant asserted that the gym—an L.A. Fitness franchise—uses Pacific Time..  FN4. Defendant offered unauthenticated gym records, which the judge admitted into evidence despite recognizing the records' inadmissibility, that suggest defendant's membership card was swiped at 4:33 p.m. The record actually suggests defendant's entry as occurring at 1:33 p.m., but defendant asserted that the gym—an L.A. Fitness franchise—uses Pacific Time.

FN5. The parties' thirteen-year-old daughter provided testimony that suggested it was not impossible for defendant to have used the cellphone to make the call in question at 5:01 p.m., but the judge did not appear to give her testimony much weight..  FN5. The parties' thirteen-year-old daughter provided testimony that suggested it was not impossible for defendant to have used the cellphone to make the call in question at 5:01 p.m., but the judge did not appear to give her testimony much weight.

FN6. For example, even if it is conceded that defendant entered his gym at 4:33 p.m., there is no record as to his departure.   Had he left a moment later and driven home, by his testimony a ten-minute drive, he could have been back in his house with access to the eight-year old child's cellphone in time to make the 5:01 call to plaintiff..  FN6. For example, even if it is conceded that defendant entered his gym at 4:33 p.m., there is no record as to his departure.   Had he left a moment later and driven home, by his testimony a ten-minute drive, he could have been back in his house with access to the eight-year old child's cellphone in time to make the 5:01 call to plaintiff.

FN7. In cases where the alleged act is physically violent, and not merely annoying or harassing, the finding of an act of domestic violence may implicitly carry with it a finding that an FRO is necessary to prevent further abuse.   But this case consisted merely of a harassing communication, and the judge's findings do not implicitly suggest he made the last finding required by Silver..  FN7. In cases where the alleged act is physically violent, and not merely annoying or harassing, the finding of an act of domestic violence may implicitly carry with it a finding that an FRO is necessary to prevent further abuse.   But this case consisted merely of a harassing communication, and the judge's findings do not implicitly suggest he made the last finding required by Silver.

PER CURIAM