Opinion
DOCKET NO. A-2666-13T4
02-20-2015
L.C., Plaintiff-Respondent, v. D.C., Defendant-Appellant.
Karen A. Ermel, attorney for appellant. Legal Services of New Jersey, attorneys for respondent (Veena Vallyathan, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-0720-14. Karen A. Ermel, attorney for appellant. Legal Services of New Jersey, attorneys for respondent (Veena Vallyathan, on the brief). PER CURIAM
After a two-day trial before Judge E. David Millard, at which both parties were represented by counsel, respondent L.C. ("the ex-wife") obtained a final restraining order ("FRO") against appellant D.C., her ex-husband. Judge Millard concluded that the ex-husband had harassed the ex-wife in a violent confrontation at her residence, thereby committing a predicate act under the Prevention of Domestic Violence Act ("PDVA"), N.J.S.A. 2C:25-17 to -35. The judge also concluded that restraints under the statute were necessary to protect the ex-wife. We affirm.
The record reveals the following salient facts. The parties were divorced in August 2010. They have three children, including an older daughter born in 1995, a son born in 1999, and a younger daughter born in 2001. The ex-husband resides in the former marital residence, and the ex-wife lives in the same town a short distance away. As of the time of the incident in this case, the younger daughter primarily lived with the ex-husband, the son primarily lived with the ex-wife, and the older daughter, a college student, alternated between the parents' respective residences.
As Judge Millard found, the parties had a "dysfunctional marriage" and, with the exception of a hiatus of "relative calm" between 2010 and 2013, the "historic conflict" between them resumed in early 2013. The judge specifically found that "a significant past history of domestic violence" preceded the subject incident in October 2013. Among other things, the judge noted that the ex-wife testified about several past violent events, including allegations that the ex-husband beat and punched her in 2002, screamed, cursed, and threw things at her in 2007, and threatened her with a pool cue in 2008. Based on this past history and his assessment of the testimony, Judge Millard found that the ex-wife was "genuinely scared of [the ex-husband] in that he becomes violent, according to her, and abusive on occasion when he doesn't get his way and tends to lose control."
The present case concerns an episode that took place at the ex-wife's home on October 28, 2013. At the time, the parties were embroiled in a dispute over the ex-husband's plan to take their son to England. The ex-husband wanted the ex-wife to sign papers for the son's passport, but the ex-wife felt the son did not want to go on the trip. The disagreement had earlier prompted the ex-husband to send threatening text messages to the ex-wife.
When the ex-wife did not drop their son off at the ex-husband's home for visitation on that day, he went to her home and angrily demanded the child. The ex-husband was accompanied at the front door by one of his male friends. Angry about the son's reluctance to go on the trip and evidently blaming the ex-wife for the child's recalcitrance, the ex-husband threatened to have the mother thrown out of the house and to beat her up.
The ex-wife's boyfriend then emerged from the house to the front entrance. He told the ex-husband and his friend to leave, calling them "faggots." The ex-husband and his friend began throwing punches at the boyfriend, with the ex-wife caught in the middle. The ex-wife ended up getting hit by a wayward blow, sustaining a cut lip. The son was not in the immediate vicinity, but he apparently heard the commotion.
Judge Millard concluded that although the ex-wife had not proven assault, as she had alleged in her application for a restraining order, she did prove the elements of harassment under N.J.S.A. 2C:33-4(a). Judge Millard also found that the second aspect of the statute was satisfied, remarking that there was "little doubt" that a restraining order was needed.
On appeal, the ex-husband variously contends that: (1) a predicate act of harassment was not established because the court made no finding of the ex-husband's purpose to harass, and the court's finding of a lack of "offensive touching" on the assault supposedly cannot be reconciled with the finding of harassment; (2) the FRO was not necessary to protect the ex-wife; (3) the ex-husband was denied Due Process because of the court's sua sponte amendment of the complaint; (4) the court improperly declined to review, in camera, documents from the Division of Child Protection and Permanency ("DCPP") that may have been relevant; and (5) the Family Part should have stayed the domestic violence trial, pending the outcome of the criminal proceedings against the ex-husband and his friend. We reject these arguments and sustain Judge Millard's sound decision.
To obtain an FRO under the PDVA, a plaintiff must establish two key elements by a preponderance of the evidence. First, a plaintiff must prove that defendant committed one of the predicate offenses, as enumerated in N.J.S.A. 2C:25-19(a). Second, if a predicate offense is shown, plaintiff must also show that a restraining order is necessary for the protection of the victim. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006); see also J.D. v. M.D.F., 207 N.J. 458, 475-76, 488 (2011); L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 536 (App. Div. 2011).
In reviewing an FRO issued by the Family Part following a bench trial, our scope of review is limited. The Family Part's findings are binding on appeal, "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is particularly appropriate in cases where the evidence is largely testimonial in nature and hinges upon a court's ability to make assessments of credibility and veracity based on its observation of testifying witnesses. Id. at 412. A trial judge, rather than an appellate court, has a better opportunity to evaluate credibility. Ibid.; see also S.D. v. M.J.R., 415 N.J. Super. 417, 429-30 (App. Div. 2010).
We also bear in mind the expertise of trial court judges, who routinely hear many domestic violence cases in the Family Part. Cesare, supra, 154 N.J. at 413. We therefore will not disturb the "factual findings and legal conclusions of the trial judge unless [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." S.D., supra, 415 N.J. Super. at 425 (quoting Cesare, supra, 154 N.J. at 411-13).
At the time of the present trial, which commenced on Christmas Eve 2013, Judge Millard was the Presiding Judge of the Civil Division. He agreed to take this case to assist the Family Part with its docket that day, having previously served for many years in the Family Part himself.
Turning to appellant's first issue, it is abundantly clear that the elements of harassment were adequately satisfied here. There is ample evidence that the ex-husband had a "purpose to harass" his former spouse through his aggressive and hostile behavior when he appeared at her residence. The transcript reflects that when the ex-wife informed him that their son was unavailable, he launched into a tirade, reportedly yelling, "You're out of this fucking house. I'm going to throw all your shit in the street. The police are coming." He also told the ex-wife that "I hired a [r]ealtor. The house is going for sale. Find a place to live." He added, "The next time your boyfriend yells at my daughter, I'm going to beat the shit out of both of you" and "I'm calling Social Security on you. You're going to get thrown off. Let's see where you get your money now. You're getting out of here."
Conspicuously absent from these unrefuted invectives is any reference to the parties' son. Rather, the record reflects a series of targeted threats and expletives manifestly intended, at the very least, to alarm and or annoy the ex-wife to such an extent that she would capitulate to his will. See N.J.S.A. 2C:33-4(a) (defining harassment to include conduct in which a defendant, "with purpose to harass another[,] . . . [m]akes, 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").
The ex-husband's intent to harass his ex-wife by his offensive words and actions on her doorstep is further confirmed by the otherwise undisputed history of domestic violence between the parties. Indeed, this October 2013 volatile encounter has substantial similarities with previous episodes that were recounted by the ex-wife, whose testimony Judge Millard generally found to be credible. The ex-husband's contention that this occurrence was merely "situational" is belied by the record.
The ex-husband did not testify, and he did not present any witnesses in his behalf.
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We also discern no reason to vacate the harassment finding because of Judge Millard's separate finding with respect to the assault statute, N.J.S.A. 2C:12-1, that the ex-husband did not intentionally strike the ex-wife and had instead intended to strike her boyfriend. The assault and harassment statutes have different elements. As we have already noted, the ex-husband's offensive, profane, and threatening words — all clearly aimed at seriously annoying or alarming his ex-wife — are sufficient in themselves to meet the criteria of the harassment statute. Moreover, a finding that the ex-husband intended to strike the ex-wife's boyfriend is not inconsistent with an intent to harass her. Indeed, the situation bespeaks a dual purpose: to both inflict physical harm on the boyfriend while also intimidating the ex-wife as she witnessed her boyfriend being attacked.
The ex-husband's claim that the record is inadequate to justify restraints under the second prong of Silver, supra, 387 N.J. Super. at 125-27, is clearly without merit. Given the past unrefuted history of the ex-husband's violent and threatening behavior recounted by the ex-wife, and the more recent hostilities expressed in his text messages leading up to this particular confrontation, the ex-wife justifiably was found to be in need of restraints.
We are satisfied that the judge acted within his discretion in allowing the ex-wife's complaint to be amended, after she was initially cross-examined, to specify a predicate act of harassment. The judge fairly granted a two-week adjournment so as to enable the ex-husband and his counsel to meet the amended claim, and the ex-husband acceded to that postponement. See H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003) (endorsing a trial court's grant of "a continuance where fundamental fairness dictates allowing a defendant [in a domestic violence case] additional time" to prepare to meet amended or amplified allegations). When the present trial resumed after the two-week interval, the ex-wife took the stand again and the defense took advantage of a further opportunity to cross-examine her. There was no due process violation.
The trial court did not abuse its discretion in declining to review DCPP records to discover if there were inconsistent statements made by the ex-wife to the DCPP employees who investigated this incident. See State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009) (generally applying an abuse of discretion standard of appellate review to a trial court's discovery rulings), aff'd, 201 N.J. 229 (2010). In fact, the ex-husband's trial counsel cross-examined the ex-wife about her DCPP interview, attempting to show that she had told DCPP that the incident occurred in the kitchen rather than by the front door. The trial judge's election to not delve into confidential DCPP files in search of further impeachment material is consistent with the general statutory prohibition against the disclosure of the contents of DCPP files, except in very limited instances. See N.J.S.A. 9:6-8.10a. The judge rightly declined to engage in a fishing expedition that the ex-husband speculates might have uncovered material evidence. The DCPP workers were not eyewitnesses to the altercation, and the information about the episode in their files would have been collateral at best.
Lastly, an adjournment of the domestic violence trial was not required because of the pendency of criminal proceedings. The ex-husband's testimony at the FRO hearing could only be used for impeachment purposes against him in a criminal proceeding. See N.J.S.A. 2C:25-29(a); State v. Duprey, 427 N.J. Super. 314, 324 (App. Div. 2012). Moreover, the PDVA prescribes that domestic violence cases are to be tried promptly, ordinarily within ten days of the filing of the plaintiff's complaint. N.J.S.A. 2C:25-29(a). The fact that the ex-husband's friend was also facing criminal charges did not compel the Family Part to suspend the present case. Judge Millard did not misapply his discretion in proceeding to adjudicate this matter and to resolve the pressing question of whether final domestic violence restraints were or were not appropriate.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION