Opinion
DOCKET NO. A-5029-13T3
05-22-2015
R.S.-O., Plaintiff-Appellant, v. D.O., Defendant-Respondent.
Law Offices of Rocco C. Cipparone, Jr., attorneys for appellant (Mr. Cipparone and Lucille A. Bongiovanni, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Hayden and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-1527-14. Law Offices of Rocco C. Cipparone, Jr., attorneys for appellant (Mr. Cipparone and Lucille A. Bongiovanni, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff R.S.-O. (Rita) appeals from the Family Part's May 15, 2014 order, after trial, dismissing her domestic violence complaint against her estranged husband, D.O. (Daniel) and denying her request for a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to - 35. Rita contends the trial court failed to make a finding whether defendant committed a predicate act of domestic violence, and applied an incomplete standard in determining whether a FRO was needed assuming a predicate act had been committed. Rita also contends, as plain error, the court erred by viewing a video-recording offered by defendant without preserving it in the record. Having considered Rita's arguments in light of the record and the applicable principles of law, we affirm.
We utilize pseudonyms for the convenience of the reader, and to protect the parties' privacy.
I.
Rita alleged that Daniel committed predicate acts of harassment, N.J.S.A. 2C:25-19(a)(13), N.J.S.A. 2C:33-4, and stalking, N.J.S.A. 2C:25-19(a)(14), N.J.S.A. 2C:12-10. The alleged predicate acts arose out of two transfers of the parties' son, G.O. (Gilbert), then three years old, during Easter weekend in 2014. Rita and Daniel were the sole witnesses at trial. Rita was represented by counsel. Daniel was not.
Rita and Daniel were in the midst of divorce proceedings in New York when the alleged acts of domestic violence occurred. The parties' marital home was in Orange County, New York. They separated in 2011, when plaintiff relocated to Southern New Jersey with Gilbert. She did so without a court order permitting relocation. For some period of time thereafter, the parties attempted reconciliation, and Daniel spent weekends with Rita and Gilbert at Rita's new residence.
That changed around August 2013, after Daniel learned that Rita was involved in a romantic relationship with another man, K.B. (Kevin). Defendant found a revealing photo of plaintiff, which he claimed Kevin's wife posted on a website. Daniel stated he confronted Rita with the photo. Their relationship deteriorated thereafter.
Daniel asserted that Rita prevented him from exercising parenting time with Gilbert between September and December, 2013. He ultimately filed a complaint in Burlington County in November 2013, seeking parenting time. He withdrew the complaint in January 2014, after the parties reached a parenting time agreement in the context of their New York divorce case. Daniel was to exercise parenting time on alternating weekends, with the exchange of the child at the Jersey Gardens Mall in Elizabeth.
Rita alleged, as prior acts of harassment, that Daniel repeatedly called her and made unwelcome visits to her workplace. She also asserted that he appeared at Gilbert's school five times without letting her know, and contrary to the New York parenting time agreement that limited him to every other weekend. Daniel asserted that his purpose in calling her repeatedly was to secure parenting time with his son during the fall and early winter of 2013.
Daniel was scheduled to receive Gilbert at the mall on Friday morning, April 18, 2014. However, he testified he was confused about the time and failed to leave his home to meet Rita and Gilbert. Rita offered to transfer Gilbert a few hours later, at a diner near her home. Daniel agreed.
Daniel reached the diner first. The parties dispute what happened after Rita and Gilbert arrived, accompanied by Kevin. According to Rita, Daniel was incensed by Kevin's presence. Lacing his speech with obscenities, he accused her of making a big mistake, told Kevin he better leave, and told Rita she would regret doing what she did. After Kevin got out of the driver's seat to remove Gilbert's bag, Daniel allegedly knocked Kevin's glasses off and started to push him to the ground. Rita testified that she fled into the diner with Gilbert. Daniel followed her, and again using obscenities, accused Rita of being adulterous, and of exposing Gilbert to her affair. Daniel took custody of Gilbert, and Rita left with Kevin, who was urging calm. She testified that she went to the State Police at a nearby barracks to ask them to follow Daniel and retrieve Gilbert, but she was rebuffed.
According to Daniel, Kevin was the aggressor. Daniel stated that he told Kevin to remain in the car after he arrived. Kevin instead got out of the car, and using obscenities, told him to shut up, and threatened to assault him. Kevin then came "chest to chest" with Daniel and bumped him. Daniel said he shoved Kevin back to create space between the two. He told Kevin he had no business being at the transfer. Daniel went into the diner, told Rita she had "f- - -ked up" and left with his son.
The next disputed incident occurred the following day, at the mall, when Daniel returned to transfer Gilbert back to Rita. Rita stated she was accompanied by her niece and Kevin, who "was watching from afar to make sure that nothing happened." She stated, "I was afraid if [Kevin] were there again, it would just escalate everything." She stated she retrieved Gilbert and left with her niece and Kevin.
Daniel testified that he texted Rita in advance to advise her not to bring Kevin. On the other hand, Daniel chose to arrive with a girlfriend. He said she sat a distance away from the transfer point. After Daniel transferred Gilbert and was leaving the mall, he spotted Kevin taking pictures of him from an upper level. Daniel testified that he texted Rita that she should tell Kevin to stop following him and taking pictures; but Daniel also offered to pose if Kevin really wanted a picture of him.
The parties also disputed what happened after the transfer. Rita testified that as she proceeded south on Interstate 95, she noticed that Daniel was following her. She testified, "So I texted him and asked him if he was having fun following me, and . . . he said that he was just proving that I was an erratic driver." She stated she left the interstate, returned to the highway an exit later, and then, as she again exited the highway, at the interchange apparently nearest to her home, she discovered Daniel waiting for her. She claimed he continued to follow her as she headed toward her destination. He had his phone out the window, apparently to take photographs or record the incident. She called 9-1-1 from her car, and then drove to a police station where she filed a complaint.
Rita was apparently referring to a criminal complaint, which was not offered into evidence. Her domestic violence complaint was not filed until two days later, on April 22, 2014.
Daniel claimed that he left the mall first. He admitted he traveled south, although his home was to the north. He explained that he had made a reservation at a hotel near the diner drop-off the previous day. At the time, he thought he would stay in the area, rather than drive back and forth to New York State. However, after the altercation on the 18th, he decided to postpone the reservation and return the next evening with his female friend.
Daniel testified that as he drove south on the interstate from the drop-off, Rita's vehicle raced by him at 80 m.p.h., with Kevin at the wheel. Daniel conceded that he was traveling at 75 m.p.h. Daniel testified he took out his phone to video what he believed was reckless driving while Gilbert was a passenger. He stated that Kevin and Rita left the highway, returned, and then commenced following him as he exited. Daniel proceeded to a donut shop, and then his hotel.
The judge stated she wanted to view Daniel's video, but first asked Daniel to show it to Rita's counsel. Counsel viewed the video, and asserted that he believed it indicated that Daniel was "chasing" Rita. The judge asked counsel if he had any objection to the court viewing the video, and counsel replied, "No objection. Not at all Your Honor." The judge then viewed the video, which was not marked or preserved as an exhibit. The judge did so in the presence of Rita's counsel, and Daniel. The judge stated that she was unable to discern Rita's automobile at various points where Daniel claimed it was evident. The judge acknowledged observing Rita's car pass Daniel after he had pulled over. Defense counsel, essentially in argument, asserted that the video showed that Daniel's "vehicle caught up to another vehicle parked to the left, he took pictures of that vehicle, sped past that vehicle, pulled over and waited for that vehicle to pass him again."
After Rita's counsel asked, "Can we approach, Your Honor?" the judge answered, "Yes, the two of you can come up." From the context, it appears that the "two" referred to counsel and Daniel, who proceeded to testify about what was depicted in the video as the court viewed it.
Without objection, Daniel read various texts exchanged between him and Rita. He did so without laying a foundation regarding the authenticity of the text messages. He testified that he texted, "Gotcha," referring to the fact that he had recorded her. She replied, "Have fun following me," to which he responded, "Who said I was following you? You sped by me, you sped by me." He accused her of driving erratically with Gilbert in the car.
Daniel also asserted that Rita's motivation in seeking a restraining order was to interfere with his parenting rights. He alleged that a text from her substantiated his claim. The court referred to the message as "D-1" but it was not, apparently, printed and formally admitted into evidence, nor is it included in the record before us. Without reading the full text into the record, the court stated that the text did not directly ask Daniel to relinquish his parental rights, but appeared to address the issue in the context of a negotiation over child support.
The judge stated, "That's not what it says. It seems to be sort of a negotiation between child support and relinquishment. I mean, she doesn't say outright that you . . . I want you to give up your rights to your son. She's indicating, at least if I can interpret this message, she's talking about child support."
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Rita testified that she was afraid of Daniel. She testified that although his weapons had been seized — apparently after she obtained the temporary restraining order — she feared "something is going to happen."
The trial court denied Rita's request for a FRO. In an oral opinion, the court set forth the preponderance of the evidence standard of proof. In addressing the first incident, the court acknowledged "there was . . . screaming going on," "I think you were upset," and there was a confrontation between Kevin and Daniel. "The question is whether or not that constitutes domestic violence."
Regarding the second incident, the judge acknowledged that both parties drove dangerously on the highway, but ultimately concluded, "I don't know what happened there."
Although the court's findings were somewhat disjointed, the court concluded that Rita failed to meet her burden to establish the predicate act of harassment. The court noted that Rita had to prove that Daniel had "engag[ed] in [a] course of conduct or repeatedly committed act[s], with the purpose to alarm or seriously annoy." Her conclusion that Rita had failed to meet her burden is reflected in the court's observation, "I don't know what the motive is here." She then equated the case to one of domestic "contretemps," referring to Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995) and Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995).
The court addressed Rita's allegations of a prior history of domestic violence. She noted that Rita alleged Daniel was controlling, but concluded, "There's no domestic violence here. The motive here is to try to control with regard to the parenting time." The court concluded, "There's no proof that this is a case of domestic violence action that requires a restraining order in this case."
II.
Our scope of review of the trial court's fact-finding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We shall uphold a trial court's findings of fact if they are supported by "adequate, substantial and credible" evidence. Ibid. "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (internal quotation marks and citation omitted). We are especially reluctant to disturb a Family Part judge's fact-finding. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. On the other hand, we owe no special deference to a trial court's legal interpretation of a statute, or "the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Applying this standard of review, we discern no error in the court's application of the law, and conclude the court's fact-findings were adequately supported by the record.
We consider first the trial court's finding with respect to the alleged predicate act of harassment. N.J.S.A. 2C:33-4. A critical element of the offense is the purpose to harass. See State v. Hoffman, 149 N.J. 564, 576-77 (1997). A plaintiff's subjective feeling of annoyance is not enough. J.D. v. M.D.F., 207 N.J. 458, 487 (2011) (stating a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose.").
We are satisfied that the trial court adequately engaged in "[d]rawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of 'ordinary domestic contretemps.'" Id. at 475 (quoting Corrente, supra, 281 N.J. Super. at 249-50). The Court in J.D. recognized that not every bothersome, offensive, or rude behavior rises to harassment. Id. at 483. In that case, the defendant passed by the plaintiff's home in the early morning hours to document her cohabitation with another man, which he intended to use to support an effort to secure custody of their child. Id. at 469-70. The Court reversed entry of a restraining order because the trial court had failed to find a purpose to harass. Id. at 487-88. Likewise, in L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523 (App. Div. 2011), we reversed the finding of harassment, as the trial court failed to establish the defendant-father had the purpose to harass. The defendant was repeatedly texting his former wife, but it was to obtain information about their daughter's academic performance.
This case involves two incidents. In the first, Daniel reacted emotionally to the presence of Rita's boyfriend, Kevin. Rita claimed that he used obscenities, and allegedly assaulted Kevin. Daniel responded that he only shoved Kevin away after Kevin chest-bumped him. The court ultimately concluded that Rita had failed to persuade it, by a preponderance of the evidence, that the incident occurred as Rita alleged. There was sufficient credible evidence to support that finding. First, the parties presented contrary versions of the event and the court made no finding that one party was more credible than the other. Moreover, even if Daniel were the aggressor toward Kevin, that falls short of demonstrating a purpose to harass Rita.
The proofs regarding the second incident were, likewise, unpersuasive to the trial court. The court ultimately concluded that the video was unenlightening as to what happened. The court noted that both parties were driving dangerously, but the court was unable to determine who was following whom. In any event, the court held that both events constituted domestic contretemps, and not a predicate offense of harassment.
We recognize that a trial court is required to set forth its findings of fact and conclusions of law with adequate detail. R. 1:7-4. See also J.D., supra, 207 N.J. at 488; Kamen v. Egan, 322 N.J. Super. 222, 226 (App. Div. 1999). Although the court should have presented its findings in a more organized and detailed fashion, we are satisfied that the court made a sufficient finding that Rita had failed to establish a predicate offense of harassment.
We recognize that the court did not expressly address the offense of stalking, which was asserted in the complaint. However, Rita's counsel did not address stalking in his argument to the court, nor has Rita addressed it in her brief before us. We therefore consider the claim to be abandoned.
We need only briefly address Rita's remaining arguments. Rita asserts that the court misapplied the second stage of the analysis prescribed in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). See also J.D., supra, 207 N.J. at 475-76 (adopting Silver analysis). The second stage of the analysis pertains to the need for a restraining order, even if there was a finding of a predicate act of domestic violence. "This second inquiry . . . begins after the plaintiff has established, by a preponderance of the evidence, the commission of one of the enumerated predicate acts . . . ." Silver, supra, 387 N.J. Super. at 127.
In this second inquiry, the court must determine whether restraints are necessary "to protect the victim from an immediate danger or to prevent further abuse." Ibid. Rita asserts the court erred by addressing only the absence of "immediate harm," without addressing whether restraints were necessary to "prevent further abuse." We think the finding is implicit in the court's decision, although it certainly would have been preferable if it had been stated explicitly. However, the court's omission is of no consequence, as the court found insufficient proof of a predicate offense.
Finally, we consider Rita's argument that she is entitled to a new trial because the court failed to admit into evidence and preserve Daniel's video of the parties in their respective automobiles. We agree the court's informal treatment of the video evidence was contrary to the Court Rules. See R. 1:2-2 (stating that video and audio recordings presented at trial shall be transcribed or marked into evidence and retained by the court); R. 1:2-3 (stating generally that evidence must be marked and preserved). The same may be said of the numerous texts that the parties read aloud, or summarized, without objection. Neither party insisted that the other lay a sufficient foundation that the electronic communications were what the proponent claimed they were, nor did the court preserve them all for the record.
Upon the court's direct inquiry, Rita's counsel stated he did not object to the court's review of Daniel's video; rather, counsel argued that the video actually supported Rita's version of the incident. Counsel did not insist that it be copied and preserved as an exhibit. We therefore consider the court's decision to view the video without admitting it into evidence to be invited error. N.J. Div. of Youth and Family Servs. v. M.C., III, 201 N.J. 328, 340 (holding invited error bars "a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.") (internal quotation marks and citation omitted). In any event, we deem the error harmless, as the court was unable to discern who was following whom from the recording.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION