C.H. v. L.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1707-05T21707-05T2

C.H.,

Plaintiff-Respondent,

vs.

L.W.,

Defendant-Appellant.

__________________________________

 

Argued: June 13, 2006 - Decided June 30, 2006

Before Judges Conley and Cuff.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Mercer County, Docket No. FM-11-509-06.

Irwin P. Rosenthal argued that cause for appellant.

Respondent has not filed a brief.

PER CURIAM

In this appeal, defendant L.W. appeals from an order entered pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -33, that bars him from any contact with plaintiff C.H., bars him from visiting the daycare center attended by his child, and requires drop-off and pick-up for parenting time at a local police station. On appeal, defendant argues that the trial judge impermissibly limited testimony of the parenting time conflict between the parties, which defendant contends was the motive for seeking relief under the Act. He also argues that the trial judge failed to provide an explanation of her credibility findings. We reverse.

Plaintiff and defendant engaged in a dating relationship and are the parents of a daughter born January 3, 2005. On January 11, 2005, plaintiff filed a complaint for child support and to establish a parenting time schedule. Following a custody and visitation evaluation, mediation and referral to a child support hearing officer, an order for child support was entered on June 15, 2005.

On June 21, 2005, defendant filed a complaint seeking additional parenting time. The parties were referred to mediation, and an interim order was entered increasing the time defendant could see his child. On October 19, 2005, plaintiff filed a domestic violence complaint and a temporary restraining order issued based on plaintiff's allegations that between September 29 and October 6, 2005, defendant called numerous times and left messages using explicit sexual references. Plaintiff also alleged that defendant grabbed her body on September 29, 2005, and grabbed her breasts and legs on October 6, 2005. The complaint alleged that these acts were criminal sexual contact, an act of domestic violence.

At trial, plaintiff conceded that defendant did not leave sexually explicit messages on her answering machine. She testified, however, that on two occasions defendant touched her body inappropriately during transfer of the child from one parent to the other. In one instance, plaintiff testified that she was in her living room dressing the baby when he touched her breast and leg. She stated:

On this occasion he came into the home and as I was getting her ready he decided to grab on my body. He rubbed on my legs, rubbed on my feet. He --

Q. Where were you?

A. In my living room dressing our daughter and he came in. . . . But, he also grabbed on my breast as he was handing [the child] to me, or as I was handing [the child] to him.

Plaintiff also described another incident when she was placing the child in defendant's car. She stated that defendant caused her to fall into him at which time defendant grabbed her breasts, touched her legs, and touched her stomach area. She described the incident as follows:

And then on the 29th of September, as I was putting her into the car seat he was behind me and he tripped me into him someway, like as I was putting her in the car, as he was taking her for his parenting time. He someway got behind me to trip me and then I fell into him and he grabbed [m]y body again, again touching my breasts, touching my legs, and touching my stomach area.

Plaintiff also testified that she told defendant that she did not want him to touch her.

Defendant conceded that plaintiff fell into him as the child was being placed into his car. He testified that he touched her on her shoulders as he tried to keep her from falling and that plaintiff did not complain to him at that time about his actions. He also denied that he touched her body when he entered her apartment to pick up the child.

Defendant also asserted that plaintiff's domestic violence complaint was a stratagem to curtail his access to his daughter. He stated that he believed "that this is an attempt and has always been to keep me from seeing [the child]." The trial judge advised defendant that custody and parenting time were not the issues before the court.

At the commencement of her oral decision, the trial judge stated that the testimony required her to determine the credibility of the parties. She then stated that she found plaintiff more credible and then found that an act of domestic violence occurred. She found that plaintiff asserted and proved two instances of unwanted sexual contact and that a final restraining order should issue.

We reject defendant's contention that the trial judge impermissibly curtailed exploration of the custody and parenting time dispute between the parties. Defendant correctly argues that matters illustrating a motive to fabricate are relevant in any proceeding, including a domestic violence proceeding. State v. Pontery, 19 N.J. 457, 471-73 (1955); State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996). Here, however, the record establishes that the trial judge was aware of the on-going dispute concerning parenting time. In fact, the trial judge questioned plaintiff about her reservations regarding defendant's appearance at the daycare center. We are satisfied from our review of the record that the trial judge was aware that defendant's access to the child was a major source of disagreement between the parties and a possible motive for elaboration of the import or nature of the various incidents.

Defendant argues that the judge did not explain her credibility findings. That is true, but there are more fundamental problems with the findings entered in this case. Here, the trial judge simply found that defendant touched plaintiff on intimate parts of her body and that the touching was unwanted. These findings are insufficient to support a finding that defendant committed the predicate act of criminal sexual contact.

N.J.S.A. 2C:25-19 defines domestic violence as the occurrence of one or more of fourteen criminal offenses on a person protected by the Act. One of the offenses is criminal sexual contact. N.J.S.A. 2C:14-3 defines this offense as "an act of sexual contact with the victim" under the circumstances set forth in N.J.S.A. 2C:14-2c(1) through (4). N.J.S.A. 2C:14-1d defines "sexual contact" as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor."

The circumstances identified by N.J.S.A. 2C:14-2c(1) through (4) require that the actor "use physical force or coercion, but the victim does not sustain severe personal injury" (N.J.S.A. 2C:14-2c(1)), or that the victim is on probation or parole or confined to a hospital or prison and the actor has supervisory or disciplinary power over the victim (N.J.S.A. 2C:14-2c(2)), or that the victim is at least sixteen years of age but less than eighteen years of age (N.J.S.A. 2C:14-2c(3)), or that the victim is at least thirteen years of age but less than sixteen years of age and the actor is at least four years older than the victim (N.J.S.A. 2C:14-2c(4)).

Here, the trial judge found that defendant touched plaintiff on various parts of her body, including her breasts, and that the touching was unwanted. She did not find, however, that any of the circumstances identified in either N.J.S.A. 2C:14-2a(2) through (7) or N.J.S.A. 2C:14-2c(1) through (4) existed. Manifestly, most of the circumstances identified in these provisions do not apply in this case. Indeed, the only circumstance that could give rise to criminal sexual contact in this case would be the circumstance identified in N.J.S.A. 2C:14-2c(1), in which the actor used physical force or coercion, but the victim did not sustain severe personal injury. In this case, the judge made no finding that defendant used physical force or coercion to accomplish the unwanted touching. The judge also failed to find that the unwanted touching of an intimate part of plaintiff's body was for the purpose of degrading the plaintiff or sexual gratification of defendant. Such findings are a predicate to finding that an act of domestic violence in the nature of criminal sexual conduct occurred in this case. See E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990) (integral to a finding of domestic violence is establishment of the requisite mental element of the predicate offense).

Here, the trial judge omitted critical findings to establish the predicate offense of criminal sexual contact. The evidence provides no basis to allow the requisite findings of physical force or a purpose to degrade the plaintiff or sexually gratify defendant. We, therefore, reverse the final domestic violence restraining order entered on October 25, 2005.

 
Reversed.

(continued)

(continued)

8

A-1707-05T2

RECORD IMPOUNDED

June 30, 2006