Opinion
DOCKET NO. A-4888-13T4
06-09-2015
S.P., Plaintiff-Respondent, v. W.P., Defendant-Appellant.
Hoffman DiMuzio, attorneys for appellant (Craig W. Kugler, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FV-06-1183-14. Hoffman DiMuzio, attorneys for appellant (Craig W. Kugler, on the brief). Respondent has not filed a brief. PER CURIAM
Defendant W.P. (Walter) appeals from the Family Part's May 8, 2014 final restraining order (FRO), granting relief to his estranged wife, S.P. (Sally) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The court entered the order after finding that Walter engaged in a "pattern of harassment and a pattern of harassing behavior" and that Sally had a well-grounded fear of Walter. Walter contends on appeal that the court's findings lack the support of sufficient, credible evidence. We agree, and reverse.
We utilize pseudonyms for the convenience of the reader, and to protect the parties' privacy.
I.
Sally alleged harassment as the predicate offense supporting her request for restraints. See N.J.S.A. 2C:33-4, N.J.S.A. 2C:25-19(a)(13). She and Walter were the only witnesses at the FRO hearing. She was represented by counsel, and Walter was not.
The record evidence established that following a period of marital discord, Sally left the marital home with the parties' son and daughter on April 28, 2014, and moved in with her mother in a neighboring town. Sally did so without advance notice to Walter. She changed the locks to the home, attempting to prevent Walter's entry. Sally left what she believed were Walter's essential "belongings" outside the house. She testified that she left him a note, saying that "we'll meet back up [so] — you can gather the rest of your things."
Walter testified he arrived at the house at around 7:30 p.m. He began an exchange of text messages with Sally that she contended constituted harassment. The exchange continued into the following Wednesday. She alleged the messages caused her to fear that Walter was "going to come after [her] and harm [her]." As read by the court into the record, the exchange was as follows:
During her direct testimony, Sally was permitted to paraphrase and selectively quote Walter's text messages without prior authentication, or the formal admission of the text messages into evidence. However, after Walter asserted during his testimony that Sally had not presented the complete exchange, the court required Sally to present her cellphone to the court. The judge then read into the record the complete exchange, which Walter agreed was complete. The court's recitation demonstrated that Sally had also misquoted some of the texts.
Walter: You got five minutes to get here, to let me in the house or I will get in — get in the way I want.
Sally: I'm not coming back. Your stuff's on the step. The house is locked down so we can keep it safe and to sell it and make some money for the both of us. I'm already inside my house. Don't worry.
Walter: Where are my kids?
Sally: Already talked to realtor. I don't give a shit. You can live wherever until the house is sold. For now, I will live in my house.
Walter: I'll be there in 15 minutes to get my car. It's my car that I paid for. Where are my kids? I will call the cops and tell them that you took them. I have [local] cops and State friends.
Sally: At my mom's. Don't call, don't cause any trouble.
Walter: I'm on my way. I want the keys to my fucking car. I hope you don't see — I hope you didn't want any of these pictures on the wall of the stairs. If so, they're on the lawn in pieces.
Although the court did not expressly attribute each text to a party, the author is apparent from the context.
Sally testified that both family vehicles — a truck that Walter drove and small SUV that Sally drove — were titled in Walter's name.
Walter referred to the parties' hometown, which we have deleted to protect their privacy.
Walter then continued to text Sally without her response. The first or second of these, the court noted, was sent at 10:05 p.m.
The judge interjected the time, between its recitation of the two messages, but it is unclear whether he was referring to the first or second message.
Walter: You got my keys. Be there in five minutes. Who changed the locks? You don't answer me.
Walter: You don't answer me it's only going to make it worse for you, I promise.
Walter: You wanted money on the 30th. Yeah, that's not going to happen. Your cell phone is cut off of my plan as of 12 tonight.
Walter: I'm not working tomorrow. I will be at your mom's to take [Z.P. (Zach)] with me for a little while. I want to take them shopping.
Walter: Much smarter than that. I told you [local] cops are my friends.
Walter: What time can I see [Zach] today? Hello? You can't hide. I have every right to see my children. I want to talk to [B.P. (Betty)] also.
Sally: I'm not hiding. A Judge will decide that. Please stop texting me.
Walter: I don't have to wait on a Judge. Why are you acting like a child? You are the one who said it wasn't going to be nasty and now you're making it nasty.
Sally: We both have to wait on a Judge and I'm not being nasty in any way.
Walter: Not letting me see my kids, that's not nasty? Changing the locks on my house? That's not nasty?
Sally: I changed the locks because we have to sell the house and I'm afraid you would go and destroy things. We have to preserve the only asset we have and you did destroy stuff yesterday. We need to make money from that house, [Walter].
Walter: I didn't destroy anything but a few pictures of us, that's all. I was trying to prevent anything from being — I was trying to prevent anything from being destroyed.
Sally: It terrifies me when you do things like that. Please don't destroy anything else. I've already contacted the realtor so we can list it for sale immediately. We'll split the money. Houses sell quickly in that neighborhood, you know that.
Walter: You are . . . destroying me by not letting me see my son and daughter, so why would I agree to what you want? The cops already told me last night I can do whatever I want. I want — I want my house — anything I want to. My house — they said I can tear the walls out and they couldn't do a thing. So when do I get to see [Zach] and [Betty]? I want to see them separate. I would like to talk to [Betty] alone.
Sally: I already told you, when a Judge decides.
Walter: What Judge? I need my laptop also. I have my claim, my unemployment. I need it now.
Walter: You want to keep me from my kids. I guess your ignorance is worth more than this house.
Sally: I don't have it. It's there somewhere. And my mom doesn't even have Internet access so it's no use to me. The divorce court Judge.
. . . .
Walter: Where is this Judge? What court?
Sally: Oh my goodness, at the courthouse. We will go for our divorce, sign the divorce papers. You understand how divorce works. You have to go to court and sign papers. The Judge decides who gets what and all the other details. There will be a court date coming very soon.
Walter: So you're trying to tell me that you're not going to let me see the kids until our court date?
Sally: Like in two weeks. It shouldn't take weeks once he decides. I'll abide by that. That's my phone dying. Gotta charge. Just lost my charger. It's probably here somewhere. So once it dies I have no cell.
Between the judge's recitation of the two sentences, he stated, "This is now 11:30." It is unclear whether the timing referred to the first or second sentence.
The court stated that this message was sent at 12:12 a.m.
Sally was permitted to testify that "there were things destroyed on the lawn," based on what a police officer in the town where she moved allegedly told her, based on a conversation that officer had with a police officer in the town of the marital residence, who visited the marital home. Obviously, this double hearsay was subject to an objection. Although Walter did not interject an objection, a court should advise a pro se party of his or her right to object to hearsay.
We omit an additional text regarding a computer, as the author is difficult to ascertain and it is not material to plaintiff's complaint.
The court noted that the following text by Walter was sent at 2 p.m.
Walter: I just got off the phone with my lawyer. You cannot prevent me from seeing the kids. What you have done is considered kidnapping. I want to talk to [Betty] and [Zach] on the phone. Hello? I'd like to talk to the children on the phone. Stop acting like an immature child. You didn't even file anything for divorce. I called the courthouse and I'm going tomorrow to file an important [sic] with a Child Custody Counselor. I won't be waiting until the court to see my kids. By law I don't have to.
Walter: You're even more evil than I knew. You won't even let me talk on the phone to my children. You will regret that very soon, I promise. You don't have to say anything.
Walter: I don't have anything to say to you. I just want to talk to my kids.
Sally's counsel elicited testimony regarding several incidents to establish a prior history of domestic violence. She also alleged that Walter abused alcohol, and was often intoxicated and rude when he came home after work. She alleged that she and Walter had contentious disputes over money, and Walter provided a decreasing amount of money to enable Sally to run the household, as a stay-at-home parent. Walter also recently was laid off from his job a few weeks before.
Sally alleged two instances of physical assault. She stated that during an argument in which Sally accused Walter of infidelity, Walter choked her to the point that she almost passed out. He allegedly told her, "'The next time, I won't stop until you're dead. You[] lucked out tonight.'" Although Sally did not pinpoint the date, she stated it occurred when Betty was a "little tiny baby." At the time of the FRO hearing Betty was ten years old. Nonetheless, Sally asserted the incident occurred five to six years ago. Sally did not report the assault and remained in the home. Sally also alleged that Walter slapped her in the face during a "little spat" a few months prior to the FRO hearing. However, she admitted that she "kind of grabbed his face and said, 'Listen to me,' and [then] he slapped me."
She also described an incident on March 28, 2014, when local police arrived at the home around 2:00 a.m. to investigate Walter's alleged shoplifting of a sandwich from a local Wawa store. Sally alleged that Walter armed himself with a rifle. When Sally awoke and inquired what was happening from the upstairs bedroom level, Walter told Sally, "Get the fuck upstairs. Stay up there." Walter dropped his weapon at the officers' command. After a short discussion with Walter about the allegations, the police left without making an arrest. Sally asserted that Walter commented afterwards that he taught the police a lesson and they would "'never fuck with me again.'"
Sally also described an incident in which Walter reacted angrily when he believed that Sally tampered with a jar of moonshine Walter kept in the house. She recounted a series of text messages between the two parties while they were both in the house. He allegedly texted her, "Don't you ever touch my shit again." She asked him why he was treating her so harshly, and he allegedly responded, "'Don't you ever fucking touch my shit again, and I hope you die in your sleep.'"
As with the other texts, no effort was made to authenticate the messages, to assure their completeness, or to formally admit them into evidence.
After counsel completed his direct examination, the court inquired once whether Walter wished to cross-examine. When Walter began to testify — as pro se parties often do under such circumstances — the court did not reinstruct Walter. Rather, the court commenced its own direct examination of Walter. After obtaining responses to several questions, the court asked Walter, "What else do you want to tell me?"
Walter denied ever striking his wife, or his children. He did not deny that he drank to the point of intoxication, but alleged his wife often drank champagne to excess, and hid the bottles in her daughter's closet. He asserted that each party subjected the other to verbal abuse. He played to the court an audio recording of over five minutes. The hearing transcript indicates that the recording was played, and it extended over five minutes, but it does not include a verbatim transcription of the recording. The court did not otherwise preserve the recording as part of the record, or formally admit it into evidence. 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).
Walter explained that the incident involving the alleged shoplifting was a misunderstanding. He initially believed the police were intruders. He told his wife to retreat to her bedroom for her safety, and he did not use expletives.
After Walter paused in his testimony, the court alternated questioning of the two parties regarding Walter's champagne drinking allegation, which Sally denied. Walter claimed Sally was lying and the parties began to trade accusations.
The court then terminated the exchange. Thereafter, without confirming that Walter had completed his testimony, and without offering plaintiff an opportunity for cross-examination or rebuttal, the court launched into its decision.
The court initially denied Sally's request for restraints. The court found that Walter had a "serious alcohol problem," and he found Sally credible with regard to the choking incident several years prior. However, the court found that Walter's text messages after Sally left the marital home were not threatening and did not constitute a predicate act of domestic violence. Rather, in context, the court believed they were motivated by his desire to see his children.
The court then inquired of Sally's counsel, "So what do you want to tell me about that?" Perhaps, counsel had risen to address the court.
The court then permitted plaintiff's counsel to present an extended argument, amounting to a request for reconsideration, based on a proffer of testimony that Sally could have given, but did not. Counsel stated, "My client didn't have an opportunity to — or perhaps just glossed over the . . . violent — and well violent isn't the right word — the harassing and the relentless behavior of [Walter] during the period of time before she actually left the house." Counsel asserted that Sally could have testified about a "pattern of behavior that — that involves both financial and emotional." Without providing specifics, he alleged that Sally could have testified that once Walter lost his job, matters got worse, and Sally never knew "what [was] going to be the next thing . . . that set[] him off."
The judge then referred to the complaint, conceding that he did not focus on some of the allegations therein, but he did not recite which ones, and whether Sally had presented testimony to support them. He referred to them generally as the allegations found after those pertaining to the March 28 shoplifting-related incident.
We quote the allegations in the complaint following those pertaining to the March 28, 2014 "Wawa" incident:
Pla[intiff] states she does not feel safe, even in getting a restraining order. Def[endant] is out long hours until the wee hours of the morning. Sleeps during the day. When he is home, it's a living hell and pla[intiff] has no clue where he is or what he is doing/going when he is gone. Def[endant] does not give pla[intiff] enough money to pay the bills, mortgage and buy food, pla[intiff] received a notice of intention to foreclose on 4/15/14 due to being unable to pay the mortgage for over a year . . . def[endant] withholds the money from her every month. Def[endant] and pla[intiff] originally agreed that pla[intiff] should stay home with the children. Within the last year, def[endant] has been blaming money problems on pla[intiff]'s lack of employment-pla[intiff] has been trying to find a job, and def[endant] continues to call her a lazy bitch without a job.
Pla[intiff] watched her behavior and words around him to avoid future acts of violence from def[endant]. Pla[intiff] reports def[endant] calls her an animal, white trash, fucking bitch, lazy bitch, monster when they are arguing. Pla[intiff] reports most of their conversation is a[n] argument. Pla[intiff] agrees that the two go back and forth with one another but does not want her children to live like this.
Def[endant] drinks beer daily to excess and drives impaired daily. Def[endant] is always drunk. Pla[intiff] does not want the children driving with him or being alone with them as he hasn't been for a very long time.
Counsel added that Sally "didn't have an opportunity" to describe confrontations with Walter over money. He also stated that Sally "didn't have an opportunity to describe how at Easter he packs up his stuff and says, 'Okay, I'm out of here. I'm gone.' And she goes, 'Fine. Okay, so he's gone. So he's gone.'"
Without affording Walter an opportunity to respond to plaintiff's counsel, the court reversed itself and found that plaintiff had established a right to relief. The court found, "[T]he allegations that are alleged by [Sally] do talk about a pattern of harassing behavior." The court reiterated that Walter had a serious problem with alcohol.
I do believe that there has been past inciden[ts] of domestic violence. And that, those things coupled with the incidents that she describes on a daily basis, I think, do give rise to a pattern of harassment and a pattern of harassing behavior.
And given the history of domestic violence in this case, I do believe that [Sally] is afraid. She has reason to be afraid because of the past history of domestic violence which I do find to be true. I do not find [Walter's] testimony to be credible in that regard. And I am going to grant her restraining order.
II.
We will not disturb a trial court's fact-finding if supported by "adequate, substantial, credible evidence[,]" and we accord deference to the family court based on its special jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We will reverse a trial court's findings that "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). We also exercise broader review when we consider "the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Ibid. (internal quotation marks and citation omitted). We are compelled to reverse "if the court ignores applicable standards[.]" Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). We also owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts . . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We comment first on the procedural irregularities, and informality with which the court conducted the trial. Walter was not adequately advised of his right to cross-examine Sally. It is also unclear whether he had completed his testimony before the court invited testimony from Sally regarding the champagne allegations. The court then did not invite cross-examination of Walter, or rebuttal testimony, before launching into its initial decision. Then, the court permitted plaintiff's counsel to present a proffer of additional testimony by Sally, and did not give Walter an opportunity to respond. On the basis of counsel's argument, the court reversed itself and granted the FRO.
The record also does not reflect that the court advised Walter that he was entitled to retain counsel, nor explained to defendant the serious consequences of entry of an FRO. Perhaps this was done during an opening statement at the outset of the court's calendar.
While we have acknowledged the need of the court to focus and sometimes assume questioning in a trial involving pro se parties, the court must do so in a fair, orderly, and predictable way. Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006). The court must preserve "essential procedural safeguards including the right to cross-examine adverse witnesses . . . ." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005); see also Franklin, supra, 385 N.J. Super. at 543 (citing Peterson, supra, 374 N.J. Super. at 116, 124). Having permitted plaintiff's counsel to informally seek the court's immediate reconsideration of its decision, notions of due process required the court to give Walter an opportunity to respond. See generally, H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (noting that due process is a flexible concept, that requires at a minimum, adequate notice, as well as the opportunity to prepare and respond).
More fundamentally, the court erred in relying on counsel's description of what Sally would have testified to, had she been given an opportunity. First, even reading plaintiff's counsel's remarks indulgently as a request to present rebuttal testimony, the proffered testimony was not appropriate rebuttal testimony, as it did not respond directly to Walter's testimony. See State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970) (noting that rebuttal testimony is typically confined to contradiction of subjects introduced through defense testimony, but granting trial courts broad discretion if evidence could properly have been admitted during plaintiff's case in chief). Second, and more importantly, counsel's proffer was not evidence. See State v. Loftin, 146 N.J. 295, 353 (1996) (stating that "counsel's argument is not evidence"). Nonetheless, the court apparently relied on counsel's representation of what Sally's testimony might have been, as if it had been delivered, and without an opportunity for cross-examination.
Notwithstanding these errors, the competent evidence failed to support the court's finding of a predicate act of harassment, and its entry of a final restraining order. The statute defines three forms of harassment, but an essential element of each is proof of a purpose to harass. See State v. Hoffman, 149 N.J. 564, 576-77 (1997).
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
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;In applying the statute, "harass" must be given its ordinary meaning, namely, to annoy, torment, wear out, or exhaust the intended victim. State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.), certif. denied, 188 N.J. 577 (2006).
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
[N.J.S.A. 2C:33-4.]
Plaintiff did not specify which form of harassment defendant allegedly committed, nor did the trial court make a specific finding, although it is apparent subsection (b) was not considered. Moreover, subsection (a) is generally focused on the mode of speech employed, and not a statement's content. Hoffman, supra, 149 N.J. at 583-84. Thus, we consider plaintiff's claim under subsection (c).
On this record, we conclude that there was insufficient evidence that plaintiff was harassed; or that defendant acted with a purpose to harass that included a purpose "to alarm or seriously annoy." N.J.S.A. 2C:33-4(c). The Supreme Court has emphasized the care that a trial court must exercise to distinguish between the ordinary disputes and disagreements between persons in a past or current domestic relationship, and those acts that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). In J.D., the Court reversed entry of a restraining order where the trial court had failed to find a purpose to harass. The defendant in J.D. passed by plaintiff's home in the early morning hours to document her cohabitation with another man, which the defendant intended to use to secure custody of the parties' children. Id. at 467-69. Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523, 525, 530-31 (App. Div. 2011), we reversed a finding of harassment where the trial court failed to find that a defendant-father had the purpose to harass, although he repeatedly sent text messages to his former wife to obtain information about their daughter's academic performance.
A plaintiff's assertion that he or she felt harassed is not sufficient to prove purpose to harass. J.D., supra, 207 N.J. at 484. As the Court held, a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." Id. at 487.
Here, the trial court failed to make a finding that defendant acted with a purpose to harass. Rather, the court recognized in its initial decision that Walter was motivated by a desire to see his children. Walter did not threaten violence, despite mounting frustration over his wife's unilateral decision to relocate with the children, and bar his contact with them until a court addressed the matter.
In its final decision, the court found a "pattern of harassing behavior," but again failed to make a finding of a purpose to harass. Having reviewed the exchange of text messages, we are persuaded that the record would not support a finding of a purpose to harass. Walter's messages reflect anger over being locked out of the house, and deprived of access to his children. There is insufficient evidence to support a finding that his intent was to harass his wife. Even his threat to destroy some pictures — which he apparently fulfilled — falls within the scope of "'domestic contretemps.'" See J.D., supra, 207 N.J. at 475 (stating that a court must "[d]raw[] 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.'") (quoting Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995)); see also Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995) (finding that regardless of defendant's purpose, the statement "'I'll bury you'" standing alone "would not have satisfied the definition of harassment . . . unless it was manifested by a course or repeated acts of alarming conduct").
As we are persuaded that there was insufficient credible evidence to support a finding of a predicate act of domestic violence, we need not address whether the court appropriately engaged in the separate inquiry regarding the need for restraints. See Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006) (stating that once a plaintiff establishes a predicate act, the court must determine "whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse").
However, we note that a finding that a plaintiff is afraid of the defendant, even if well-founded, is not equivalent to the required second finding under Silver. A party may be afraid of a defendant who, because of other circumstances, such as relocation, may no longer be in need of restraints.
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Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION