DOLORES ENTRESS v. KEVIN ENTRESS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6425-03T56425-03T5

DOLORES ENTRESS,

Plaintiff-Appellant,

v.

KEVIN ENTRESS,

Defendant-Respondent.

 

Submitted: September 28, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket Number FV-01-1736-04.

Robert N. Agre, attorney for appellant.

Levant, Martin & Levin, attorneys for respondent (Joseph A. Levin, on the brief).

PER CURIAM

In this domestic violence case, plaintiff Dolores Entress appeals from an order entered after a final hearing dismissing her complaint against defendant Kevin Entress under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

The parties were married on April 12, 1992 and have two children: Keenan, born on August 24, 1993; and Jarret, born on November 24, 1997. The contentious and litigious nature of their relationship was outlined in our recent reported opinion on other, yet interrelated issues and need not be repeated here at length. See Entress v. Entress, 376 N.J. Super. 125, 128-32 (App. Div. 2005).

The parties were divorced by the Family Part on January 13, 2003, when the terms of their property settlement agreement were placed on the record. Id. at 128-29. However, due to ongoing disputes as to its form, the final judgment of divorce was not issued until June 16, 2003. Id. at 132.

As we have noted, "the parties had a stormy parting." Ibid. Plaintiff had filed two domestic violence complaints against defendant in 2002, both of which had been dismissed. In January 2003, defendant had sought and obtained a domestic violence temporary restraining order (TRO) against plaintiff, which he agreed to dismiss as part of the settlement reached in their matrimonial action. Ibid.

At the time the divorce judgment was entered, plaintiff had been awarded custody of the children; she resided in Moorestown and defendant resided in Margate City. However, subsequent to entry of the divorce judgment the parties became engaged in almost continuous post-judgment disputes concerning various parenting time and custody issues. On April 8, 2004, the Family Part issued an order summarily transferring residential custody of the children to defendant, and referred the issue of plaintiff's parenting time to mental health experts for recommendations. Id. at 131.

It is in this procedural and factual context that the incident which forms the basis of this appeal arose. On May 14, 2004, plaintiff filed a domestic violence complaint against defendant in Margate City Municipal Court, alleging that at approximately 4:00 p.m. on that date defendant had threatened her "by saying that he was going to kill her and then [he] pushed her in the breast three times."

Based on the allegations in plaintiff's domestic violence complaint, the municipal court judge issued a TRO. A final hearing was conducted in the Family Part on June 17, 2004 before the same judge who had heard the custody and other post-judgment matrimonial issues. At the time of the May 14, 2004 incident, the children were residing in the custody of defendant, they were attending the Margate City schools, and a parenting-time schedule for plaintiff had not yet been established.

Plaintiff testified at the final hearing that she had traveled to Margate City on May 14 to visit her friend, Caroline McClure, who resided near defendant's residence. Another friend, Jean Klein accompanied her. Plaintiff also intended to visit briefly with the children at the Union Avenue School in Margate, where both children were enrolled in an after-school program, known as "Lucky Kids."

Mary McCracken was working at the Lucky Kids program on May 14, when plaintiff came to the program's entry door. McCracken testified she was familiar with plaintiff, the parties' children, and the April 8, 2004 order. When plaintiff presented herself, McCracken informed her that she "shouldn't be here." Plaintiff insisted that the order did not prevent her from seeing the children. McCracken told her that Keenan was not at Lucky Kids that day. Plaintiff handed McCracken snacks she had brought for all the children at the program, visited briefly with Jarret, and then left. McCracken informed the principal of plaintiff's appearance at Lucky Kids, and the principal informed defendant by telephone.

After leaving the Lucky Kids program, plaintiff and Klein were traveling toward McClure's home when they saw Keenan playing basketball in the street. Plaintiff stopped her vehicle in the middle of the street, exited, and began speaking with Keenan. Plaintiff testified she was concerned about Keenan's asthmatic condition, and noticed that he was not breathing well.

Plaintiff stated that while speaking with Keenan, defendant came "screeching" around the corner in his vehicle, stopped, got out, approached them, and "grabbed Keenan by the arms and he picked him up and he started walking him to his car." Plaintiff testified she followed them to defendant's car, whereupon defendant "threw [Keenan] in the backseat." Plaintiff stated that the following then occurred:

Kevin turned around after he threw Keenan in the car and he pushed me. And he pushed me again right after that, quickly. And I was still dodging my head [to look at Keenan in the car] and I said it will be okay Keenan, you're allowed to have a lawyer. And [defendant] turned around and he said, with his fist in my face, "I'm going to fucking kill you." And he looked me right in the eye and he just like looked right through me and said it.

Plaintiff testified she was frightened by defendant's actions, stating "the whole reason that . . . we divorced I had asked him to leave because of the physical and verbal abuse."

Jean Klein testified that they went to the Union Street School on May 14 so that plaintiff could check on the children

"to make sure Keenan's breathing was right and to see they're all right, let them know she didn't abandon them. She hadn't spoken to them . . . since . . . the custody was taken away from her[.]" Klein stated that after they left the school they encountered Keenan on the street on their way to visit McClure. Klein related that when defendant arrived and placed Keenan in his car, she saw him raise his fist to plaintiff and state "I'm going to fucking kill you." Klein testified she did not see defendant hit plaintiff but "saw him grab her and shove her back into the car door." Klein stated she saw him do that once.

During defendant's testimony, the court received into evidence a letter to the trial judge dated April 15, 2004 from Dr. Dov Hammer, a court-appointed psychologist, that recommended, inter alia, that "[t]he visitation process between children and mother [following the change of custody] should be a progressive one[,]" and that "[i]t will begin with therapeutic visitation in Dr. Colton's office and will gradually increase towards independent contact between children and mother in accordance with the children's needs and in conjunction with improvement in communication between all parties." By letter dated April 15, 2004, sent by facsimile transmission, the judge sent counsel for both parties a copy of Dr. Hammer's letter, stating in pertinent part that "[a]bsent an application by one of you for some alternate relief, I will assume that the parties are complying with Dr. Hammer's recommendations."

Defendant testified that he had received a telephone call at work from the principal of the children's school, informing him that plaintiff had just been to the school seeking to visit with the children. Defendant stated:

Knowing that [plaintiff] was in Margate, and as far as I know and the way I read everything, she's not supposed to have contact with my children unless it's supervised with Dr. Colton, I immediately got in my car and I drove to Margate.

During his testimony, defendant related the following version of the May 14, 2004 incident:

When I got to Seaside Court I saw [plaintiff] and Keenan sitting on the curb. I got out of my car, I started to walk towards them. She got up, started walking towards me telling me she had a right to see her kids. I told [her] that per the court order she didn't have a right to see her children without Dr. Colton being present. I picked up Keenan, I said, "Come on, buddy, let's go."

* * * *

I didn't want to have any confrontation, I didn't want to have any arguments, I did not talk to [plaintiff], I just picked up my son, I put him in the backseat of my car and I closed the door.

* * * *

I opened the door, I put my son in the backseat, I closed the door. [Plaintiff] followed right behind me, . . . I began to walk around the back of my car to get in my side, she opened the passenger door and went to get into my car.

* * * *

I . . . walked right back over there, I got between her and the car and I removed her from in-between my car, the car door and the car, and I told her to stay out of my car.

* * * *

I got between my son . . . and her. I had grabbed her by her arms and I moved her outside because . . . she was in-between my car door and the car with her head in the car so I walked up. And when she saw me coming up she . . . pulled her head out of the car, I got between them and I moved her out of my car and I said, "Stay out of my car."

Defendant stated that after he went back around to the driver's side to enter his vehicle, plaintiff again opened the passenger door. Defendant testified that he "had to again take her and move her from my car." Defendant asserted that when he approached her the second time, plaintiff stated, "If you touch me again I'll fucking kill you." Defendant testified that his only purpose in moving plaintiff away from his car was to protect Keenan, and had no intent to strike, assault or harm plaintiff.

At the conclusion of the final hearing, the trial judge dismissed plaintiff's complaint. In doing so, the judge made the following findings, in pertinent part:

The court finds in this particular case that the plaintiff was well aware that her contact with the children following the court's April 8th order was to occur only through the efforts of the professionals who are involved in their case. It was to be gradual, it was to be monitored by those professionals. And the court has no doubt and finds that she knew on May 14th that her appearance at the children's school has been an attempt to have contact with them. While it may not have been in . . . contravention of an explicit order of the court, was nonetheless assumed by all parties to be something that should not take place. It was something which both professionals had advised was not to take place. I have no doubt that she knew it would alarm not only her children but the defendant.

I find that she did make those attempts to contact her children with full knowledge that it was not a proper thing to do, that it was not in the best interest of the children and that it would do nothing but further inflame the ongoing conflict between her and her husband. . . .

I accept as accurate the defendant's testimony that he knew where Keenan was and on receipt of that information drove to the location where he knew Keenan to be and upon arrival there . . . at the Seaside Court neighborhood, observed Keenan and the plaintiff together. He, at that point, picked up his son. I have no doubt that he was driving rapidly, I have no doubt and find that he was excited, upset, alarmed, angry. . . . He may have picked [Keenan] up in a fashion that was rough and hasty, and put him in the backseat of his car intending only to remove Keenan from the scene and prevent the plaintiff from whatever her intentions were at that point[.] . . . As he did so the plaintiff . . . came over, opened the car door and attempted to either enter the car or to remove Keenan from it, at which time the defendant went back to the passenger side, inserted himself forcefully between the plaintiff and the entrance to the car. And, as he has stated, removed her with force from that area, grabbed her upper arms with both of his hands and shoved her to the side. I'm satisfied and find that the injuries to [plaintiff] that were suffered that day were the result of those actions taken by the defendant.

* * * *

With respect to terroristic threats, the court does not believe that regardless of who threatened who on that occasion that either party believed that the other had the immediate capability and intention of ending the other's life. There's no terroristic threat here. If those statements were made they would, at most, constitute harassment. Nor does the court find that the defendant assaulted the plaintiff on that occasion. Assault -- the statute which defines assault reads as follows, "A person is guilty of assault if he: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) Negligently causes bodily injury to another with a deadly weapon; or (3) Attempts by physical menace to put another in fear of imminent serious bodily injury." I don't believe that . . . any of those three definitions applies here.

I don't believe that [defendant] attempted to cause or purposely caused bodily injury to [plaintiff]. I accept his testimony and find from all of the surrounding circumstances that his intention and his purpose was to prevent [plaintiff] from impeding his efforts to remove Keenan from the situation. And also to remove her from the area where she was standing to prevent the passenger door from again being closed. I don't believe his actions were designed or intended to cause injury to the plaintiff. I believe he was trying to complete his efforts to put his son in the backseat and to remove himself and his son from that scene. There's no doubt, however, in this court's mind, and I find that the results of his actions were to cause the redness which appears in the photographs and the bruising. That's not, I don't believe, in dispute.

The question remains then as to whether or not the offensive touching and the terroristic threats constitute harassment as that statute is defined. . . .

Again, I don't believe that the purpose of the defendant when he grabbed [plaintiff] and pushed her was to cause annoyance or alarm or to harass her. . . .

I do not know, and I am unable to make a finding, as to who threatened the other person, whether the plaintiff threatened the defendant or whether the defendant threatened her. The burden is on the plaintiff to carry that; she's failed to do so. I'm going to dismiss the complaint and the temporary order. I do intend to enter an order in the [dissolution] case prohibiting either party from having any contact with the other. And prohibiting the plaintiff . . . from having any contact with the children except at the instruction and in the presence of either one of the professionals who are involved in this case or by order of the court. . . .

At the conclusion of the findings by the trial judge, counsel for plaintiff requested that the judge recuse himself and direct a new hearing before a different judge. The judge denied that request.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE DOMESTIC VIOLENCE HEARING AS A RESULT OF THE FACT THAT HE PREJUDGED THE PLAINTIFF'S CREDIBILITY AND HAD PERSONAL KNOWLEDGE OF FACTS NOT IN EVIDENCE; THE NET RESULT OF HIS FAILURE TO DO SO WAS TO DEPRIVE PLAINTIFF OF HER RIGHT TO A FAIR, UNBIASED AND IMPARTIAL HEARING AND TO ENTER A VERDICT AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II

THE TRIAL COURT INCORRECTLY ARTICULATED THE LAW WITH RESPECT TO SIMPLE ASSAULT AND HARASSMENT.

POINT III

THE TRIAL COURT'S RATIONALE AND DECISION REGARDING DEFENDANT'S JUSTIFICATION IN USING FORCE AGAINST THE PLAINTIFF IN THE CASE AT BAR CREATES AN EXCEPTION TO THE CRIMINAL CODE THAT DOES NOT OTHERWISE EXIST THEREIN.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the arguments presented by plaintiff are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm the dismissal of plaintiff's domestic violence complaint substantially for the reasons articulated by the trial judge in his oral opinion delivered on June 17, 2004. The findings and conclusions of the trial judge are supported by adequate, substantial, credible evidence contained in the record. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

We also find no misapplication of discretion by the trial judge in denying plaintiff's belated request that he recuse himself, and direct a new hearing before a different judge. First, R. 1:12-2 requires a recusal motion to be brought prior to trial. Nevertheless, the disposition of a motion for recusal is entrusted to the sound discretion of the trial judge whose recusal is sought. Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001); Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). Moreover, in Division of Youth and Family Servs. v. L.C., 346 N.J. Super. 435 (App. Div. 2001), we noted in relevant part:

[J]udges are constantly required to adjudicate matters involving parties and related disputes which have come before the judge in a different proceeding. Judges are perfectly capable of recognizing the different issues involved, different standards of proof required and different remedies sought without "prejudging" a [party] so as to implicate due process concerns. . . . Ultimately the judge, on appropriate application from a litigant, must consider whether [his] involvement in a case warrants that judge recusing [himself] from further consideration of the issues. . . .

[Id. at 440.]

 
Here, in denying the post-hearing recusal motion, the trial judge noted that it was not unusual in the Family Part for the same judge to hear multiple cases involving the same family members; that he had no predisposition of how he would rule in this domestic violence case; and that he had not pre-judged the case. However, as we have previously noted in Entress, supra, we would expect that any future matters involving these parties, "[i]n an abundance of caution," be heard by a different judge. 376 N.J. Super. at 133.

Affirmed.

Because the parties were unable to agree as to its form, the final judgment of divorce simply appended a transcript of the January 13, 2003 proceedings, a procedure which we strongly disapproved, and noted that it violated the provisions of R. 4:42-1(a)(4). Entress, supra, 376 N.J. Super. at 134.

In Entress, supra, we reversed the April 8, 2004 order and, "[i]n an abundance of caution," remanded the matter to the Family Part for a plenary hearing before a different judge. 376 N.J. Super. at 133.

(continued)

(continued)

2

A-6425-03T5

RECORD IMPOUNDED

October 21, 2005