Opinion
DOCKET NO. A-2135-14T2
08-11-2016
F.V., JR., Plaintiff-Respondent, v. K.S.Q., Defendant-Appellant.
Victoria L. Chase argued the cause for appellant (Rutgers Advanced Domestic Violence Clinic, attorneys; Ms. Chase, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-001144-15. Victoria L. Chase argued the cause for appellant (Rutgers Advanced Domestic Violence Clinic, attorneys; Ms. Chase, on the brief). Respondent has not filed a brief. PER CURIAM
Defendant K.S.Q. (Kat) appeals from a November 20, 2014 final restraining order (FRO) obtained by plaintiff F.V., Jr., (Fred) against her. For the reasons that follow, we affirm.
We use fictitious names for clarity and confidentiality. --------
A brief recitation of the procedural history follows. Kat filed complaints and obtained temporary restraining orders (TRO) against Fred in 2009 and 2011. However, both times the trial court did not enter an FRO. In 2014, Kat again filed a complaint and obtained a TRO against Fred. The following day, Fred filed a cross-complaint and obtained a TRO against Kat. Kat then amended her complaint to include allegations of prior assault and harassment from 2006, 2009, 2010, and 2011.
At the hearing, the court heard testimony from Kat, Kat's grandmother, and Fred. We discern the following facts from the record. Kat and Fred dated from approximately 2003 to 2007. They had two children together, F.V. III and X.V., but never married. At the time of the hearing, the parents had a shared custody arrangement.
Kat testified that on the morning of October 20, 2014, she dropped the children off at Fred's home so they could take the bus to school. They were late. When they arrived, Fred came outside "screaming out in a rage, using foul language" as he was helping the kids out of the car. After the kids went inside the home, Fred continued to use profanities towards Kat and she alleges he "hawk spit" on her car. Later that day, Kat obtained the underlying TRO against Fred.
On October 29, 2014, Fred arrived at Kat's workplace, a grocery store in Pennsauken. Fred purchased food and left, and Kat did not describe any sort of interaction between them. Kat stated she was afraid Fred might come back to her workplace, so she resigned from her position. At that time, Kat had relocated from her home in Collingswood to a domestic violence shelter in Salem County because she allegedly was afraid of Fred. Kat claimed that because Fred discovered the location of her shelter in Salem County, she relocated to a new residence.
Kat also described a prior history of domestic violence between Fred and herself. During an argument on April 1, 2011, Fred allegedly pushed Kat against the wall, bit her finger, punched and kicked her.
Kat further testified that during an argument in December 2010 regarding child support, Fred flipped a bowl of hot soup onto her, burning her chest and stomach. Fred then grabbed Kat's head and hit it against the wall about six times, leaving a hole in the wall, and a "knot" on Kat's head. Kat's grandmother, testified that she witnessed the December 2010 incident. She stated Fred grabbed Kat and shook her, "hitting [her] against the wall." However, other than that event, Kat's grandmother had not seen Fred "put a hand on [Kat] other than in self-defense."
Kat also described an incident in March 2009 at St. Christopher's Hospital in Philadelphia following their child's brain surgery. Fred allegedly "hawk spit" in her face, grabbed her head, and pushed her into the wall. Fred then punched her in the arms "a couple times." Finally, Kat described an argument from 2006 over rent money. While Kat was holding their two-week old son, Fred allegedly pushed Kat, causing the child's head to hit the wall.
Kat testified she is afraid of Fred based on these prior incidents. Photos of injuries she claimed to have suffered during the 2011 and 2009 incidents were marked for identification, but the judge ultimately refused to consider them. Kat testified she had not produced the photos in the prior court proceedings.
Fred testified that Kat was supposed to drop the children off early at his house on October 20, 2014, so they could get ready before being picked up by the school bus. Kat and the children arrived late, and an argument between Fred and Kat ensued where Kat said "I'm going to get you shot." Fred testified "I said okay. I thought nothing of it because this is what she does. She's a very angry, bitter person." However, Fred also testified he did not take "her threats lightly, because she is . . . not completely mentally stable." Fred said he did use profanities during the argument, but denied spitting at Kat. After Kat drove away, Fred prepared the children and drove them to school.
Fred also denied any wrongdoing in discovering the location of Kat's shelter in Salem County, stating he was informed of the location by a Division of Child Protection and Permanency worker. With respect to all of the allegations of prior domestic violence asserted by Kat, Fred stated:
I'm not going to say that . . . this is false because it's true. We have gotten into physical altercations, but that's because of . . . her approaching me physically and me defending myself. Never have I punched [Kat]. If anything, I've gripped (sic) her up, I pushed her off of me. I bit her finger that time that she was at my house because her finger was in my . . . gums.
With respect to the April 1, 2011 incident, Fred testified that Kat was caring for the children and Fred was spending time with his girlfriend at his home. At approximately 11:00 p.m., Kat arrived with the children unannounced while Fred and his girlfriend were in bed. Kat allegedly "barg[ed] in[to] the room saying, oh, this is the girl that you had to fuck around my kids." Kat threw a bottle of E & J Brandy that she was holding, and attempted to fight Fred's girlfriend.
Regarding the incident at Kat's workplace, Fred testified that he was unaware Kat worked at the grocery store in Pennsauken, and to his knowledge Kat did not have a job for the previous five or six years. Fred claimed the grocery store is within one mile of his children's school, and he regularly shops there.
The trial judge refused to consider the 2011 and 2009 incidents, or any related photographs, finding the underlying allegations were previously litigated in separate hearings. Because Kat's prior applications for FROs based on those allegations were denied, the judge determined those allegations were precluded from his consideration.
With respect to the underlying 2014 allegations, the judge found Fred's testimony to be more credible than Kat's testimony. He found that Fred used foul language towards Kat when she dropped off her kids at his house on October 20, 2014, but did not find that Fred spit at or on Kat. The judge determined that Kat failed to establish Fred committed any predicate act of domestic violence.
However, the judge found that Kat threatened Fred's life, constituting harassment, N.J.S.A. 2C:33-4(a). The judge also noted a prior finding from the judge in the 2011 FRO hearing that Kat committed a predicate act of domestic violence against Fred. Given the party's "volatile relationship" and Kat's threats against Fred's life, the judge found an FRO necessary to prevent "future acts" of domestic violence, and granted an FRO against Kat.
Kat appeals from the trial court's entry of an FRO against her. Kat claims the judge erred by finding that she committed a predicate act of domestic violence against Fred and that a restraining order was necessary. Additionally, Kat claims the judge improperly barred evidence from prior domestic violence proceedings involving the parties.
When reviewing domestic violence matters, "we grant substantial deference to the trial court's findings of fact and legal conclusions based upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013), certif. denied, 216 N.J. 587, (2014). We may disturb the trial judge's factual findings only if we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
Prior to granting an FRO pursuant to the PDVA, the judge must conduct a "two-step analysis" of a plaintiff's claim. N.T.B v. D.D.B., 442 N.J. Super. 205, 216 (App. Div. 2015). "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. (alteration in original) (quoting Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006)). If the plaintiff satisfies his or her burden, the court must then determine "whether [it] should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126. We emphasize that an FRO should not be entered without "a finding that 'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)).
We conclude there is ample evidence to support the judge's finding that Kat committed the predicate act of harassment. Harassment is, in pertinent part, "a communication, . . . [in a] manner likely to cause annoyance or alarm" when made "with the purpose to harass another." N.J.S.A. 2C:33-4(a). "[T]here need only be proof of a single such communication. . . ." J.D., supra, 207 N.J. at 477. The Supreme Court has held "[a]nnoyance means to disturb, irritate, or bother." Ibid. (alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 580 (1997)).
Here, Kat threatened Fred's life by saying "I'm going to get you shot." The parties have a volatile relationship, and Fred testified that he did not take her threats lightly because he believes her to be "mentally unstable." After hearing testimony from both parties and finding Fred more credible, the trial judge found Kat's threat to be harassment. The record supports that finding by the judge.
Kat principally relies on Peranio v. Peranio, 280 N.J. Super. 47, 57 (App. Div. 1995), to support the position that her threat towards Fred was simply "domestic contretemps." In Peranio, the court found the defendant's statement "I'll bury you" was related to "obtain[ing] his rights under the law with regard to the divorce" and did not qualify as harassment. Id. at 52, 56. Therefore, we concluded the defendant did not commit a predicate offense of domestic violence.
This case is not analogous to Peranio because Kat's statement cannot be misconstrued as anything besides a threat to Fred's life. Deferring to the trial judge's credibility findings, and given the parties' prior history, we conclude the judge's finding was correct and supported by substantial credible evidence.
Next, we address whether the judge's finding that the entry of an FRO against Kat was necessary to prevent further abuse was supported by substantial credible evidence. Kat relies on L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523 (App. Div. 2011), for her claim that Fred did not establish an FRO was necessary for his protection. In L.M.F., there was no history of domestic violence between the parties. Id. at 536. We concluded the defendant's statements that "this is his house" and that "he could do what he wanted" were "devoid of any menacing behavior" and were "not part of a pattern of verbal or physical abuse" requiring an FRO for future protection. Id. at 536-37.
Here, amidst a prior history of domestic disputes, Kat threatened Fred's life during a heated argument. The trial judge found it was necessary to enter an FRO to prevent future domestic violence. The judge's reasoning was supported in part by the finding of the judge in the 2011 FRO hearing that there was "an act of domestic violence by [Kat]" against Fred, although this prior finding was not necessary to support the judge's finding at this hearing.
As to the judge's decision to preclude evidence of prior instances of domestic violence that had been previously litigated, Kat asserts that collateral estoppel "should not be applied as a bar to the presentation of evidence in domestic violence cases." Res judicata is a "doctrine barring relitigation of claims or issues that have already been adjudicated." Mortgageling Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 346 (1995) (quoting Velasquez v. Franz, 123 N.J. 498, 505 (1991)). "Collateral estoppel is that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186 (1977).
Collateral estoppel may be applied to allegations in domestic violence cases where the first complaint was "dismiss[ed] on the merits after adjudication." T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div.), certif. denied, 175 N.J. 78 (2002). See also J.F. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998) (barring relitigation of "allegations which had been decided adversely to [the plaintiff] in the earlier hearing"). However, in some circumstances, such as a domestic violence complaint alleging a predicate act of harassment, N.J.S.A. 2C:33-4(c), or stalking, N.J.S.A. 2C:12-10(b), "an individual act previously rejected as insufficient to constitute domestic violence . . . may be considered along with the new conduct." T.M., supra, 348 N.J. Super. at 106. Here, the judge did not err in not allowing relitigation of prior instances of domestic violence that had been fully litigated.
This case is distinguishable from L.T. v. F.M., 438 N.J. Super. 76 (App. Div. 2014), upon which Kat relies. In L.T., the plaintiff alleged assault in a Law Division case after successfully obtaining an FRO against the defendant. Id. at 81- 82. The trial court applied the doctrine of collateral estoppel and barred the defendant from defending against the plaintiff's allegations of assault. Id. at 83-84. Noting the summary nature of an FRO trial as compared to the procedure in the Law Division, and the higher standard of proof for the punitive damages sought by the plaintiff in the intentional tort action, we reversed.
Unlike the offending party in L.T., Kat is not burdened with defending against allegations under a higher standard of proof. Nor is she defending against allegations in a new court with procedures differing from those used in an FRO trial. Therefore, we conclude Kat's argument that collateral estoppel should never be applied in domestic violence cases to be unpersuasive.
Notably, however, Fred did not file a complaint for a restraining order against Kat in 2011. Therefore, the determination of whether Kat committed a predicate act of domestic violence in 2011 was not essential to the 2011 judgment. The prior finding against Kat in 2011, therefore, may not have been a determination that satisfied all elements of collateral estoppel. However, the prior complaints of domestic violence against Fred based on allegations that were adjudicated and found to be without merit did properly bar the judge from reconsidering them.
The judge could consider and did consider the history of domestic violence generally, which was admitted to by both parties. There was ample evidence to support the judge's decision even without considering the court's 2011 finding against Kat from the prior hearing. The judge's finding that Kat committed an act of domestic violence against Fred and that a restraining order was necessary is amply supported by the credible evidence in the record and the judge's credibility determinations.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION