Opinion
DOCKET NO. A-3638-14T2
01-21-2016
M.K., Plaintiff-Respondent, v. A.K., Defendant-Appellant.
A.K., appellant pro se. Skoloff & Wolfe, attorneys for respondent (Betsy W. Bresnick, of counsel and on the brief).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor.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, Essex County, Docket No. FV-07-1229-15. A.K., appellant pro se. Skoloff & Wolfe, attorneys for respondent (Betsy W. Bresnick, of counsel and on the brief). PER CURIAM
Defendant appeals from a final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because we find plaintiff was allowed to testify extensively about prior history not included in the complaint in violation of defendant's due process rights, which history the court relied on to provide context for the threat constituting the predicate act, we reverse and remand for a new hearing.
This matter arose out of an unfortunately acrimonious post-judgment custody dispute. Although defendant was awarded primary residential custody of the parties' eight- and ten-year-old children at the time of the divorce, seven months later plaintiff sought and received temporary residential custody, and defendant's time with the children was ordered supervised.
In his domestic violence complaint, plaintiff claimed defendant threatened to kill him during one of these supervised visits. Specifically, the complaint alleged:
Victim states that during a supervised visit at a therapist's office between his children and ex-spouse[,] she entered the waiting room area where the victim was waiting. At that time[,] the suspect leaned over and whispered to the victim "I'm gonna fuckin kill you." The victim did not reply because . . . one of his children [was] in the room. Approximately 5 minutes later[,] the suspect repeated once again to the victim in a low voice[,] "I'm gonna fuckin kill you." The suspect then exited the building while the victim waited for his other [child] to complete her therapy session.The only prior history included in the complaint were two incidents, one from two years earlier and the other from five years earlier, in which defendant had accused plaintiff of assaulting her. Plaintiff noted that charges stemming from both incidents had been dropped or dismissed.
At the hearing, which the court had already adjourned for thirty days to allow defendant to obtain counsel, plaintiff was represented by counsel and defendant appeared pro se. Plaintiff's counsel began the direct examination of her client by asking the court's indulgence to allow her to elicit "a little background information in order to set the stage for the incident in question, because . . . this has been a very unusual and very sad divorce." She explained she was "not amending the complaint as adding to a predicate acts, but just giving the court a little frame of reference because I think it's important for you to understand how we did arrive at where we are today."
Counsel then proceeded to question plaintiff about the history of the parties' post-judgment custody dispute, including having plaintiff read into the record portions of orders in which the court explained its reasons for temporarily shifting custody to plaintiff and supervising defendant's parenting time. Counsel asked plaintiff to identify and explain several emails defendant had sent to him and others, including public officials, in the four months preceding his domestic violence complaint, accusing him of psychologically abusing their children and expressing her belief that her obligation to the health and safety of the children "trump[s] orders."
Plaintiff's counsel culminated this line of questions by asking plaintiff to read into the record an email from defendant stating, "You lie, you run away, you hide, you are careless, you are insanely abusive, you are killing children. What you are doing is criminal, the consequences will be severe," and asking him for his reaction to its receipt. Plaintiff responded, "Fear. Fear. When you combine her belief that I am doing these things, if she is truly of this mindset, it started as the allegation that I'm abusive, which is not true." After hearing the question and the answer, the court intervened to admonish plaintiff's counsel that she was "getting deeply into what would be considered as prior history of domestic violence, which is not listed in the complaint." Noting, "[t]his is more than general background, at this point," the court directed counsel to "move on."
Plaintiff's counsel moved on to an order entered a week before the incident giving rise to the complaint, finding defendant in violation of litigant's rights for circumventing the order for supervised parenting time and preventing her from having unsupervised parenting time at any location, including the children's school. When the court again expressed concern about the direction of the testimony, plaintiff's counsel acknowledged the "general background" offered was "extensive" but stated she had elicited it "[b]ecause [the predicate act] is one confined act that could be used differently, if it hasn't had the history that preceded this history in this case."
Plaintiff then testified to defendant's threat to kill him. He explained that he was seated in the waiting room of the therapist's office when defendant, who was inside with the therapist and the children, began screaming at him to come in and explain to the children why she could not accompany them on a school field trip. Plaintiff entered the office briefly, but returned to the waiting room "trusting [the therapist] to defuse the situation with [defendant]."
A short while later, plaintiff was sitting in the waiting room with one of the children when defendant entered, still "emotionally charged" but calm. He testified the child asked defendant whether she would be joining them on the field trip, and defendant said no, she did not think so. According to plaintiff, defendant, "after several minutes of chatting nicely with [the child]," turned to plaintiff, "leaned in, into [his] personal space" and whispered, "'I'm going to fucking kill you,' with an extreme level of ferocity" that plaintiff claimed shook him immediately. Defendant then resumed her pleasant chat with the child. Plaintiff claimed that several minutes later, plaintiff again turned to him and whispered, "'I'm going to kill you' in an extremely ferocious manner."
In response to his counsel's question about his reaction to the threat, plaintiff responded:
Fear. I — having watch[ed] the decline that has taken place over this period of time, and the — the disconnect between reality and the emails that she sends to me and to other people, and her belief — her stated belief that I'm killing children; that I am psychol[ogically] abusing these children. She — I was absolutely fearful that she might do what a parent might do. If you really believe someone was killing your child, what would you do?Asked to elaborate, plaintiff repeated that he had watched defendant's behavior decline over time.
The . . . disconnect, again, between reality and the things that she says in her emails and other statements make me fearful for her connection to reality, and what is right and wrong.
On the one hand, she says that she is doing the right thing. And that she has said in written communications that when the children's well being is at stake, Orders essentially do not matter. That their well being trumps the Orders. And in fact, I think you had me read something to that effect earlier.
In her testimony, defendant denied threatening plaintiff. When defendant attempted to refute plaintiff's portrayal of their custody dispute and impugn plaintiff's credibility with reference to documents in that matter, the judge denied it on the basis that custody and parenting issues were not properly before him.
At the conclusion of the two-day hearing, the court entered the FRO. In explaining the reasons for his decision, the judge began by stating his belief
that there was a time when [defendant] was, in all likelihood, a very good mother. For whatever reason, and it may be an onslaught of litigation because that happens sometimes and I'm not making a finding that it did here, but for whatever reason, she has become unraveled. She has come apart. And even if there was fraud by the plaintiff, as she alleges, and — and all these other things, the point is that today, where we now stand, I conclude that she has become a threat to the plaintiff and that's why . . . I will be issuing the final restraining order.
Considering the elements of N.J.S.A. 2C:12-3b, third-degree terroristic threats, namely, that a person "threatens to kill another with purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out," the court found plaintiff had established all three by a preponderance of the evidence. The court noted the case turned on credibility, and "the backdrop of the case . . . while not going to specific issues of prior history of domestic violence, the backdrop of the case has a great deal to do with assessing credibility and analyzing motive in — a case like this."
Reviewing the testimony, including the orders entered in the custody matter and defendant's emails to plaintiff, the court found "it would seem that . . . the escalating losses that she went through as the children were taken away and then supervised parenting time was order[ed] and then she was held in violation of litigant's rights for one thing and then another thing, all of it just continued to build." Referencing specifically the email in which defendant claimed plaintiff was killing children and that the consequences would be severe, the court found "[t]here is no question that that is escalating the threat level that's involved here." The court explained it was
spending so much time talking about the backdrop of this case because the backdrop of this case . . . suggests to me that we were leading to a point where there was going to be an explosion. And that history is important in helping to determine what somebody might suggest could be an ambiguous incident. . . . But . . . even if it's ambiguous . . . in the abstract by itself, when you view it in the context of the rest of the relationship, it can then become very clear.
The court concluded that defendant made the threat, that she intended to do so and that any rational person would believe the threat was real. Turning to the Silver analysis, the court found "there has been a history of domestic violence. There has been threats. There has been harassment." The court further found defendant presented an immediate danger to plaintiff and his property and that the entry of an FRO was required.
Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).
Defendant moved for reconsideration claiming the court had curtailed her ability to challenge plaintiff's credibility and buttress her own by preventing her from admitting documents from the parties' custody dispute. The court denied the motion and awarded plaintiff fees of $4725.
Defendant appeals raising the following issues, only the first of which we deem meritorious:
I. The Trial Court Improperly Admitted Evidence Of Prior Domestic Violence Not Mentioned in the Complaint, and Further Failed to Allow Defendant To Respond to Such Allegations.
II. The Trial Court Wrong[ly] Excluded Evidence Challenging Plaintiff's Credibility.
A. Evidence that Plaintiff Misrepresented Facts About a Key Aspect of the Proceeding.
B. Evidence of Plaintiff's Past Invention of A Threat by Defendant.
III. The Trial Court Wrongly Excluded
Evidence Substantiating Defendant's Credibility.
IV. The Trial Court Wrongly Failed to Accommodate Defendant's Disability.
V. The Trial Court Wrongly Limited Defendant's Cross-Examination of Plaintiff.
VI. Plaintiff Did Not Establish Defendant's "Threat."
VII. The Proceeding Was Misused As a Matter of Law.
VIII. The Trial Court Barred All Communications Between the Parties, Regardless of the Children's Interests.
We begin our analysis by acknowledging that this was a difficult case. The court, although crediting defendant with remaining respectful throughout the proceedings, characterized her as "just all over the place." He described defendant as hostile in her attitude toward the case and plaintiff and angry, confused and unorganized "with papers, just spread all over her table, her computer, her iPad [and] her phone." Having reviewed the hearing transcripts, we are well satisfied that the trial judge was patient, knowledgeable about the law and conscientious in rendering judgment after carefully listening to the testimony. Notwithstanding, we conclude that plaintiff's extensive testimony about the prior history between the parties, which was nowhere in the complaint and which the court found so crucial in giving context and meaning to the words uttered by defendant, deprived her of due process and requires reversal of the FRO.
We do not dispute, of course, that the court was required to consider the past history of abuse between these parties. The PDVA mandates that "acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties." Cesare v. Cesare, 154 N.J. 394, 402 (1998) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995)); N.J.S.A. 2C:25-29a(1). Further, although proof of terroristic threats is measured by an objective standard, the Supreme Court has held that a court evaluating such a claim in a domestic violence context "should regard any past history of abuse by a defendant as part of a plaintiff's individual circumstances and, in turn, factor that history into its reasonable person determination." Cesare, supra, 154 N.J. at 403. Thus the past history of abuse was essential in this case.
That history, however, could not be admitted in derogation of defendant's due process rights to "receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). The Court has explained that there is no tension between providing plaintiffs the protections of the PDVA by allowing a full exploration of the parties' prior history of domestic violence and the due process rights of defendants. All that is required is that the court "recognize that if it allows that history [presented in the domestic violence complaint] to be expanded, it has permitted an amendment to the complaint and must proceed accordingly." Id. at 479-80.
That was not done here. Instead, in the guise of providing "a little background information," plaintiff was allowed to testify at length to an escalating course of conduct, which the court found included threats and harassment constituting domestic violence, not included in the complaint. That was not fair to defendant and deprived her of her right to notice and to a fair opportunity to defend herself against plaintiff's claims. See H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003) (holding 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'") (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998)).
The lack of notice left defendant unprepared to defend herself against plaintiff's claim that in the time since the divorce she had lost touch with reality and embarked on an escalating course of alarming conduct culminating in her whispered threat to him in the therapist's office. When defendant tried to defend herself and impugn plaintiff's credibility and characterization of her conduct in the context of the custody dispute, the court limited her ability to do so on the basis that the custody dispute was not relevant to the issues to be decided by the court. We do not address those rulings here. We note only that in addition to the due process concerns, there is another danger in the court not recognizing that testimony of past history has worked an amendment to the complaint. By not acknowledging that it has allowed a plaintiff to raise new claims, a court could define the relevant evidence with reference only to the claims included in the complaint. Doing so could result in too narrowly confining the defense of the newly raised claims.
Although defendant never formally requested an adjournment in "lawyer-like language," she several times expressed the difficulties she was having responding to plaintiff's new allegations about her conduct in the custody dispute without running afoul of the court's directive to limit her cross-examination and testimony to the matters before the court. As in J.D., defendant's struggle to respond to the "expansion of factual assertions that form the heart of the complaint for relief" should have raised the due process question and prompted an adjournment of the proceedings to allow defendant to prepare to meet the new allegations. 207 N.J. at 480.
Although we have no doubt that defendant was familiar with the emails and orders which plaintiff presented to the trial court, our review of the transcripts convinces us that this was not a case in which defendant was well prepared for testimony that only technically expanded on the allegations of the complaint. Both plaintiff's counsel and the court acknowledged the extent to which plaintiff's testimony exceeded the parameters of the complaint, with the court specifically warning that counsel was "getting deeply into what would be considered as prior history of domestic violence, which is not listed in the complaint." That the court relied so heavily on that history in interpreting defendant's isolated threat to plaintiff makes the due process violation patent.
We also reject the notion raised by the court on reconsideration that defendant had adequate time to prepare by virtue of the lengthy adjournment the court had allowed her to secure counsel. As the Court noted in Nicoletta, "[t]here can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice.'" Nicoletta v. North Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978) (quoting Dep't of Law and Pub. Safety v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971)). --------
Because we are convinced that plaintiff's extensive testimony about prior history not included in the complaint, which history the court relied on to provide context for the threat constituting the predicate act, violated defendant's due process rights, we reverse and remand for a new hearing on a final restraining order. The temporary restraints shall remain in place pending final hearing unless amended by order of the trial court. Although we are confident of the capabilities of the judge who heard the matter, because he has already conscientiously engaged in weighing the evidence and rendered an opinion on the credibility of the parties, the hearing should take place before a different judge. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION