Opinion
DOCKET NO. A-0759-14T3
11-09-2015
A.W., Plaintiff-Respondent, v. M.W., Defendant-Appellant.
Robert J. Greenbaum, attorney for appellant. A.W., respondent pro se.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0279-15. Robert J. Greenbaum, attorney for appellant. A.W., respondent pro se. PER CURIAM
Defendant appeals from the September 22, 2014 final restraining order (FRO) entered pursuant to New Jersey's Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, (Act). Defendant contends the trial court's finding he committed acts of domestic violence is not supported by the record. We agree and reverse.
I
On September 15, 2014, plaintiff filed a domestic violence complaint alleging defendant committed acts of harassment, see N.J.S.A. 2C:33-4, and on this date the court granted her a temporary restraining order (TRO). At the conclusion of the final hearing held on September 22, 2014, the court entered a final restraining order in favor of plaintiff and against defendant. The following facts adduced at the hearing are relevant to our consideration of the issues presented on appeal.
At the time plaintiff obtained the TRO, a complaint for divorce had been filed. The parties had been married for nine years and had three children, then ages eleven, six and four. Although both parties still resided in the marital home, on alternate nights each party vacated the home while the other remained and slept in what had been the marital bedroom.
Approximately a week before plaintiff obtained the TRO she decided to sleep in a different bedroom because she found evidence that another woman was sleeping in the parties' bed when it was defendant's turn to spend the night in the house. Although it was acceptable to her to sleep on the same mattress defendant used on alternate nights, she did not want to share the mattress with a third party. Therefore, she moved the mattress that had been on the parties' bed and put it in another bedroom, leaving an air mattress for defendant. It is undisputed she did not discuss moving the mattress with defendant beforehand.
Two days later, defendant texted plaintiff and told her to come to the house by 10:00 p.m. or he would take the mattress. She replied that she had put a lock on her bedroom door and that he did not have permission to enter the bedroom. Defendant indicated he would do what he wanted and take the door off the hinges.
Plaintiff went to the house at approximately 11:00 p.m. Because plaintiff was fearful of what defendant might do when she got to the house, plaintiff's mother accompanied her to the marital home. When they arrived, defendant was in and did not emerge from what had been the former marital bedroom, which by then was regarded as his bedroom. The mattress was still in her bedroom and the door intact. Plaintiff's mother then left.
Defendant came out of his bedroom and asked why plaintiff's mother had been in the house. Plaintiff informed him she wanted her mother present because she was afraid of him. Defendant responded "[Y]ou're scared? I'll show you fucking scary." She then went into her bedroom and locked the door.
Two days later, defendant texted plaintiff and advised he had taken the mattress out of her bedroom. He also told plaintiff to inform a friend of hers that defendant was "coming for him." Although it was not her turn to spend the night in the home, plaintiff went to the house at 12:30 a.m. to check on the children. She discovered defendant had changed the deadbolt lock on the front door, locking her out of the house. However, she managed to climb through a window and discovered the mattress had been removed from her bedroom. When she had last been in the house, she had left her bedroom door unlocked. After checking on the children, she locked her bedroom door and left for the night.
Claiming she did not have a place to sleep in the house because defendant had put the mattress back in his bedroom, plaintiff texted defendant the following day and asked him to stay at the house again that night. Defendant complied with that request. The next day plaintiff returned home and discovered her bedroom door was damaged and that the door would not close. The parties' son told her that defendant had kicked in the door while she was gone. Plaintiff assumed defendant kicked the door because he was angry over of the fact she had locked that door.
Plaintiff also testified that four months before, defendant kicked the door of their son's bedroom. At the time plaintiff was not home, but learned about the incident when defendant texted her to report that the child slammed the door in his face and he responded by kicking in the door. Defendant also stated in the text "Oh boy, I felt bad about that - but he's being a little out of control." Finally, plaintiff testified that approximately eighteen months before, defendant punched her in the ribs with a closed fist, causing a slight bruise.
Defendant testified he removed the mattress from plaintiff's bedroom and back into his bedroom because he otherwise did not have a place to sleep. He denied punching plaintiff in the past or changing the deadbolt lock on the front door.
Defendant further testified that, at an unspecified point in time in the past, plaintiff had a number of her friends at the house one evening. Defendant had gone to sleep in the marital bedroom when, later in the evening, plaintiff woke him up and said "get the fuck out of my bed." She threatened to throw his belongings out of the window if he did not comply. He considered sleeping on the couch, but because it was next to the kitchen where plaintiff's friends were still gathered and were making noise, defendant remained in the bed. Plaintiff then threw defendant's property out the window. Plaintiff did not dispute this incident occurred in the manner defendant described.
Defendant did not specify what was thrown out of the window.
The specific predicate acts set forth in the complaint that plaintiff alleged constituted harassment were as follows: (1) defendant sent her a text telling her to be at the house by 10:00 p.m. or he would "steal her bed;" (2) after plaintiff informed defendant that she was afraid of him, he replied, "If you're scared, I'll show you fucking scary;" (3) defendant took plaintiff's mattress; (4) defendant told plaintiff to inform a friend of hers that defendant was "coming for him;" (5) defendant changed the deadbolt lock on the front door; and (6) defendant damaged her bedroom door and opened it.
The pertinent portions of the trial court's findings are set forth below.
I heard the testimony and, quite frankly, based on my observations of [plaintiff], I do believe that she is frightened. I believe her testimony. . . She is fearful of him . . . And viewing the plaintiff, listening to her testimony and equally looking at the defendant and listening to his testimony, quite frankly I find her more believable than I do the defendant.
One of the things that was mentioned, and again, sometimes, it's those very small things that change it, but the defendant said, you know, where could I sleep when she took the bed? Just a few moments later he says well, I don't mind sleeping on the couch but it was late that night and I
didn't want to do that. Again, very inconsistent, didn't make sense.
I believe that he was upset that she took the mattress. I believe [plaintiff's] statement that he — he may have had other people in the room. And I believe that that's harassing. And I believe all - the totality of the circumstances that I have heard. . .
All of the factors indicate to me that harassment occurred . . . under 2C:33-4, an intent to harass.
He engaged in a course of alarming conduct, repeatedly committed acts with a purpose to alarm or seriously annoy such other person . . . under . . . subdivision A [of N.J.S.A. 2C:33-4].
On appeal, defendant argues that none of the evidence supported a finding of harassment under N.J.S.A. 2C:33-4.
II
Our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. We intervene only when convinced that the trial judge's factual findings and legal conclusions "'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)). Where our review addresses questions of law, however, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div of Youth & Family Services v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
A party seeking a FRO under the Act must establish by a preponderance of the evidence that the defendant committed an act of domestic violence. Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). The Act defines domestic violence as the commission of any one or more of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19(a). Harassment under N.J.S.A. 2C:33-4 is among the fourteen predicate offenses that, if proven, may entitle a party to the entry of a FRO. N.J.S.A. 2C:25-19(a)(13); N.J.S.A. 2C:25-29(b)(1), (6)-(7).
Here, the trial court found defendant committed an act of harassment under N.J.S.A. 2C:33-4(a). To establish harassment under N.J.S.A. 2C:33-4(a), a plaintiff must prove that a defendant
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.Further, a finding of harassment requires proof that the defendant acted with a "purpose to harass." N.J.S.A. 2C:33-4; see also Silver v. Silver, 387 N.J. Super. 112, 124 (App. Div. 2006).
[N. J.S.A. 2C:33-4(a).]
In addition, "the drafters of the law did not intend that the commission of any one of these acts automatically would warrant the issuance of a domestic violence order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Whether an act of domestic violence has occurred necessitating the entry of a FRO involves a two-pronged test. Silver, supra, 387 N.J. Super. at 125. "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:25-19(a) has occurred." Ibid.
Second, if a defendant has committed a predicate act of domestic violence, the court must then determine if the victim requires the protection of a final restraining order. Id. at 126. The Act is not intended to encompass "ordinary domestic contretemps," Corrente, supra, 281 N.J. Super. at 250, but, rather, "is intended to assist those who are truly the victims of domestic violence." Silver, supra, 387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999)).
We first address the court's credibility findings. The court indicated that a reason it found defendant incredible was the following alleged inconsistency. Defendant testified that he took the mattress back from plaintiff's bedroom one evening because he did not have a place to sleep. The court believed — erroneously — that defendant had also testified that he could have slept on the couch that night but did not want to.
When addressing defendant's credibility and this alleged inconsistency, the court stated "sometimes, it's those very small things that change it." In this latter statement, the court was referring to evidence that tips the balance and enables a fact-finder to make a final determination about a party's credibility. Here, the court indicated this alleged inconsistency in defendant's testimony was the evidence that tipped the balance in favor of finding defendant was not credible and, conversely, plaintiff was.
Our concern about the court's credibility assessment is that defendant never made an inconsistent statement. Defendant's sole mention of the couch occurred when he recounted the incident when plaintiff demanded he get out of their bed and he considered but rejected the idea of sleeping on the couch. However, there was no evidence when this incident occurred and whether the couch he referenced even existed at the time of the alleged incidents of domestic violence.
In fact, there was evidence the couch did not exist at the time of the alleged domestic violence, as plaintiff herself mentioned she had no place to sleep in the house after defendant put the mattress back into his bedroom.
The court unfortunately misunderstood defendant's testimony, an error on a point that the court itself declared to be pivotal. This error affected the court's perception of defendant's credibility and caused it to conclude defendant's testimony was not worthy of belief. Because the factual findings predominately depended upon the parties' credibility, this error fatally prejudiced defendant, warranting reversal of the final restraining order.
Even if the court's credibility findings were supported by the evidence, the court failed to address the specific allegations about which plaintiff testified and make findings about whether each alleged act constituted harassment under N.J.S.A. 2C:33-4 and, further, warranted the entry of a final restraining order. Silver, supra, 387 N.J. Super. at 125. The court only stated that it "believe[d]" defendant was upset that plaintiff took the mattress; however, the court did not find defendant had harassed plaintiff in violation of the statute and that such act necessitated the issuance of a restraining order. In addition, the court made no specific findings of fact about the alleged past act of domestic violence. Cesare, supra, 154 N.J. at 402.
We are mindful that domestic violence calendars frequently contain a high number of cases that must be tried and completed on the same day. The demands upon judges presiding over such calendars are significant. At the close of testimony on each case, a judge must analyze the evidence and articulate comprehensive findings of fact and conclusions of law in very short order. Attending to this sensitive task over the course of many hours is highly challenging; nevertheless, judges must be mindful of their obligation to place adequate findings of fact and conclusions of law on the record.
Plaintiff testified to two past acts of domestic violence. One was the incident in which defendant allegedly punched her in the ribs nineteen months before. The other was the incident that occurred between defendant and the parties' son. During this latter incident defendant did not inflict an act of violence upon plaintiff. For that matter, he did not commit an act of domestic violence against his son because, under the Act, such violence can occur only between adults or emancipated minors. See N.J.S.A. 2C:25-19 (a) and (d). --------
The court did find defendant's act of having other women spend the night in the marital bedroom "harassing." It is unclear whether the court based its reason for entering the restraining order, either in whole or in part, upon this conduct. To the extent that it did, the court erred.
Apart from the fact the court failed to make any findings that such conduct constituted harassment under N.J.S.A. 2C:33-4 and necessitated the issuance of a restraining order, this particular act was not set forth in the complaint as one of the predicate acts of harassment. Thus, the trial court was not at liberty to use this alleged act of harassment as a basis to enter a FRO. Our Supreme Court has held that 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.'" H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003) (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)). Second, there was no evidence defendant engaged in such conduct with a purpose to harass plaintiff, let alone that plaintiff needed a restraining order for her protection.
In the absence of sufficient findings by the trial court, an appellate court may canvass the record itself and determine if the proofs were sufficient to warrant a finding defendant's conduct constituted domestic violence within the meaning of the Act. See J.D. v. M.D.F., 207 N.J. 458, 488 (2011); Bresocnik v. Gallegos, 367 N.J. Super. 178, 180-81, 183 (App. Div. 2004). We have engaged in that exercise and conclude that even if plaintiff was credible and defendant was not, the acts about which plaintiff testified do not rise to the level of harassment under N.J.S.A. 2C:33-4 but were merely domestic contretemps. See Corrente, supra, 281 N.J. Super. at 250.
The final hearing essentially centered around the events and allegations involving a mattress. The plaintiff wanted the mattress for her own use and put the mattress in her bedroom. Defendant wanted the mattress for his own use and put it back into his bedroom. Defendant did not commit an act of harassment because he wanted to use and thus took the mattress — an act in which plaintiff herself had engaged just days before.
Even if defendant had changed the lock on the deadbolt, there was no evidence he activated that lock when plaintiff was expected to return to and enter the house. The deadbolt was locked when it was defendant's turn to be in the house overnight. There is no basis to conclude defendant intended to harass plaintiff because she could not enter the house at a time when the parties agreed defendant could have exclusive possession.
Assuming defendant's request that plaintiff tell her friend that defendant was "coming for him" was a viable threat, plaintiff's friend, not plaintiff, was the target of the threat. Defendant did not harass plaintiff when he threatened a third party. See D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994) (finding defendant who made threatening remarks toward the boyfriend of his child's mother but not against her did not commit act of domestic violence). As for kicking and damaging plaintiff's bedroom door, it was plaintiff's belief defendant did so because he was angry she had locked the door. Even she did not voice a concern defendant kicked the door to harass her.
Finally, defendant's comment to plaintiff "[Y]ou're scared? I'll show you fucking scary" is a closer question. But in the final analysis, this isolated profane comment, made during a trivial, ongoing tussle over who would win possession of the mattress, was too general and vague to rise to the level of domestic violence. Certainly, no specific crime or act of violence was threatened. Further, the fact plaintiff claimed she was afraid does not provide grounds to enter a final restraining order. "The victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." See J.D. v. M.D.F., 207 N.J. 458, 487 (2011) (citing State v. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998)).
For the reasons stated, the domestic violence final restraining order issued against defendant on September 22, 2014 is reversed and the domestic violence complaint dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION