Opinion
DOCKET NO. A-4646-13T1
03-16-2016
S.G., Plaintiff-Respondent, v. F.G., Defendant-Appellant.
Newsome O'Donnell, LLC, attorneys for appellant (Edward J. O'Donnell, of counsel; Rebecca E. Frino, on the briefs). John Smargiassi (Joseph & Smargiassi, LLC), attorney for respondent (Mario A. Joseph, of counsel; Mr. Smargiassi, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-313-13. Newsome O'Donnell, LLC, attorneys for appellant (Edward J. O'Donnell, of counsel; Rebecca E. Frino, on the briefs). John Smargiassi (Joseph & Smargiassi, LLC), attorney for respondent (Mario A. Joseph, of counsel; Mr. Smargiassi, on the brief). PER CURIAM
Defendant F.G. appeals from three orders: a December 20, 2012 final restraining order (FRO) entered pursuant to New Jersey's Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35; a March 5, 2014 amended FRO awarding plaintiff S.G. compensatory damages of approximately $142,000; and a second amended FRO dated April 29, 2014 denying defendant's request for a new trial and a stay of the March 5, 2014 order. After the parties' marriage deteriorated, divorce proceedings were initiated on July 30, 2012. Immediately before the divorce filing, defendant filed a complaint leading to the entry of a temporary domestic violence restraining order (TRO). Plaintiff filed a cross-complaint and he too was awarded a temporary restraining order. Trial on both complaints was held over twenty non-consecutive dates, beginning August 6, 2012 and concluding on December 20, 2012.
In an oral opinion, the judge set forth her factual findings, including credibility determinations. She found defendant was not truthful and failed to prove plaintiff engaged in an act of domestic violence. The judge dismissed defendant's complaint. On plaintiff's cross-complaint, the trial judge found plaintiff proved defendant engaged in harassment and an FRO was necessary because plaintiff was at risk from defendant's further acts of domestic violence. Attorney's fees, litigation costs, expert fees, and other expenses incurred as a result of defendant's conduct were awarded to plaintiff on March 5, 2014.
On appeal, defendant argues: plaintiff's evidence did not prove harassment or support an act of domestic violence; the judge failed to determine there was a need for an FRO; inadmissible testimony regarding defendant's purported conduct while in China was admitted; the award of damages was unreasonable and excessive; and her motion for a new trial was erroneously denied.
We have reviewed the arguments advanced by the parties in light of the record and applicable law. We reject defendant's challenge to the sufficiency of the evidence and find no error or abuse of discretion in the evidentiary determinations, damage award, and denial of defendant's motion for a new trial. We affirm the three orders challenged on appeal.
I.
The altercation leading to the cross-complaint seeking FROs occurred on July 28, 2012. Police responded to the parties' marital home after a 9-1-1 call was placed, with the party calling hanging up. Police interviewed the parties and took their statements. Plaintiff stated he called 9-1-1 when defendant began verbally threatening him while wielding a knife. Defendant admitted she disconnected his call for help and took the phone away from him several times as he attempted to call police.
Defendant filed for a TRO, asserting her belief plaintiff was having an affair, was verbally abusive, disrespectful, and threatened to cancel her credit cards. The reviewing municipal court judge denied the request. Defendant filed a second complaint on July 30, 2012, alleging for the first time plaintiff sexually assaulted her in their marital residence. A TRO based on this complaint was granted. On July 30, plaintiff filed a cross-complaint seeking a TRO against defendant, based on the July 28 altercation when she wielded a knife and threatened to "destroy his life and business." He also asserted she made suicidal gestures and statements to purposely alarm him.
At trial, in addition to the parties, fact and expert witnesses testified. One of the responding police officers testified defendant made no mention of a sexual assault on July 28 and specifically stated she and plaintiff engaged in consensual sexual relations the evening before. Plaintiff's forensic computer expert explained files defendant deleted from plaintiff's computer included not only photographs, but also plaintiff's business information and financial documents pertinent to the parties' divorce proceedings. Further, these files were "scrub[bed]" at a time defendant was ordered not to use the computer. Plaintiff's father also testified regarding defendant's conduct in November 2012, when she traveled to Beijing, China with her attorney. Plaintiff's father stated defendant attempted to break into his apartment where he and his wife lived, threatened to harm plaintiff, his son, and took personal belongings.
Following counsel's summations, the judge issued her oral opinion concluding defendant engaged in domestic violence, but plaintiff had not. She allowed additional submissions by plaintiff to support his request for compensatory damages, including attorney's and expert's fees, costs, and expenses to travel to China. The final order denied defendant's motion for a new trial.
Our review of the trial court's determination following a bench trial is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "The general rule is that findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015). Factual findings are not to be disturbed unless this court is "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." In re Trust Created By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Fact-finding underpinning "family court decisions are entitled to particular deference '[b]ecause of the family courts' special jurisdiction and expertise in family matters.'" In re State ex rel. A.D., 212 N.J. 200, 230 (2012) (alteration in original) (quoting Cesare, supra, 154 N.J. at 413); see also Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010).
We also afford special deference to credibility determinations. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (noting the trial court "has a 'feel of the case' that can never be realized by a review of the cold record") (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007))). "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) (alteration in original) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). However, a judge's interpretation of the law is reviewed de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
To determine whether the issuance of an FRO is appropriate, the court must perform the two-step analysis developed in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "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." Id. at 125. Second, "upon a finding of the commission of a predicate act of domestic violence," the court must determine whether it "should enter a restraining order that provides protection for the victim." Id. at 126. In deciding whether the second step was satisfied, courts consider six factors, set forth in N.J.S.A. 2C:25-29(a)(1)-(6). Id. at 127; see also Pazienza v. Camarata, 381 N.J. Super. 173, 183-84 (App. Div. 2005). This includes consideration of the parties' prior history of domestic violence, although the court is "not obligated to find a past history of abuse before determining that an act of domestic violence has been committed" as "one sufficiently egregious action" may suffice. Cesare, supra, 154 N.J. at 402. See also N.J.S.A. 2C:25-29(a)(1).
We reject, as lacking merit, defendant's challenge to the trial judge's factual findings. Defendant casts her conduct as nothing more than "domestic contretemps," easily understandable in light of her belief of plaintiff's infidelity and their crumbling marriage. See Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995) (finding no harassment when defendant discontinued plaintiff's phone lines after calling plaintiff at work and requesting money for bills); Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995) (finding defendant saying "I'll bury you" during argument, without more, was insufficient to constitute as harassment). By painting these facts as an "argument" regarding plaintiff's return to the marital bedroom, defendant ignores the predominant findings supporting the judge's conclusion that she engaged in harassment and domestic violence.
Harassment, N.J.S.A. 2C:33-4, is among the listed predicate acts, which may be a basis to enter an FRO. N.J.S.A. 2C:25-19(a)(13). A person engages in harassment:
if, with purpose to harass another, he [or she]:
a. 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;
. . . .
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.
[N. J.S.A. 2C:33-4.]
"A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). "[W]hether a particular series of events rises to the level of harassment . . . is fact-sensitive," J.D. v. M.D.F., 207 N.J. 458, 484 (2011), and demands a reviewing judge consider "the totality of the circumstances . . . ." H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003) (quoting Cesare, supra, 154 N.J. at 404). "[W]hen evaluating whether an individual acted with the requisite purpose, our courts must be especially vigilant in cases involving, as do many domestic violence disputes, the interactions of a couple in the midst of a breakup of a relationship." J.D., supra, 207 N.J. at 487; see also Murray v. Murray, 267 N.J. Super. 406, 410 (App. Div. 1993); Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999).
Here, the trial judge considered the totality of the circumstances and identified the specific conduct by defendant she relied upon to conclude defendant engaged in harassment. Further, the judge detailed her credibility determinations for each witness.
The judge found plaintiff's version of events was credible and corroborated by the neutral testimony of the responding police officer. On the other hand, defendant was found not credible. The judge listed defendant's contradictory statements as made to police, recorded in her two domestic violence complaints, and made in the course of her trial testimony. The judge particularly found defendant was "being untruthful in her testimony" because she varied her explanations over time when caught in contradictions and denied reading responses from prepared notes, despite being observed doing so.
The judge also examined defendant's actions. She determined defendant menaced plaintiff with a knife, engaged in calculated behavior when threatening suicide, falsely asserted plaintiff engaged in sexual assault, threatened his family, and purposefully destroyed plaintiff's computer financial information. Further, she found defendant willfully disregarded court orders, demonstrating "ruthless" and "determined" conduct "desperately lashing out in every direction trying to either save the marriage or get the upper hand in the divorce litigation." The judge concluded the cumulative effect of this conduct supported a finding of harassment and plaintiff "would be at risk for further acts of domestic violence without [entry of] the restraining order." See Silver, supra, 387 N.J. Super. at 127 (holding an FRO is necessitated to prevent future domestic violence).
We also find no error in the admission of defendant's post-complaint conduct, particularly acts in violation of the provisions of the TRO. This includes her destruction of computer files and conduct in China. Plaintiff's argument asserting a jurisdictional challenge is specious. The facts were admissible and, if anything, defendant's challenges go to the weight of the evidence, which was properly evaluated by the judge.
We reject defendant's challenge and defer to the trial judge's supported factual findings. Contrary to defendant's contention, her threatening and destructive conduct toward plaintiff, his family and his business and personal property exceeded the bounds of marital discord and demonstrated abusive, harassing behavior as a means to get plaintiff to change his mind about the divorce. Such severe and persistent conduct was neither "trivial and petty communications" nor an isolated outburst of transitory anger. J.N.S. v. D.B.S., 302 N.J. Super. 525, 532 (App. Div. 1997). We will not disturb the judge's findings that defendant's behavior "constitute[d] harassment within the meaning of [N. J.S.A.] 2C:33-4, [because] she made communications for the purpose of harassing [plaintiff] with the intent to cause alarm."
In light of this determination, we conclude defendant's challenge to the denial of her motion for a new trial lacks merit. R. 2:11-3(e)(1)(E). The decision to deny "a motion for a new trial is within the sound discretion of the trial judge, which we do not lightly disturb." State v. Henries, 306 N.J. Super. 512, 529 (App. Div. 1997); see also R. 4:49-1(a); Johnson v. Scaccetti, 192 N.J. 256, 280 (2007). Other than her disagreement with the conclusion she engaged in criminal harassment, defendant fails to proffer any basis to disturb the trial judge's decision.
We also find no basis to alter the damage award entered on March 5, 2014. The trial judge issued a five-page statement of reasons to support the compensatory damage award reimbursing plaintiff for expenses, including legal fees, litigation costs, transcripts, computer expert, airfare with relative costs incurred to travel to China after the November 2012 incident, and the security fees for plaintiff's family both in China and the United States.
A damage award is authorized by N.J.S.A. 2C:25-29(b)(4) and is not limited to attorney's fees and litigation costs. See McGowan v. O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div. 2007) (providing an award of attorney's fees and litigation costs to parties proving domestic violence). The statute also allows payment of items such as "out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed," along with identifiable, consequential and even punitive damages resulting from a defendant's conduct. N.J.S.A. 2C:25-29(b)(4).
The trial judge fully considered all relevant information in discerning appropriate damage requests and those related to the parties' pending divorce. In her assessment she limited compensation to those costs and damages directly incurred and suffered from defendant's domestic violence. We find no abuse of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION