T.R. v. L.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4466-04T34466-04T3

T.R.,

Plaintiff-Respondent,

v.

L.R.,

Defendant-Appellant.

____________________________________

 

Argued December 7, 2005 - Decided February 9, 2006

Before Judges Wefing, Wecker and Graves

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Somerset County, FV-18-915-05.

Joshua P. Cohn argued the cause for

appellant (Cohn, Lifland, Pearlman,

Herrman & Knopf, attorneys; Mr. Cohn,

of counsel and on the brief).

Annette Verdesco argued the cause for

respondent (Anthony J. Pope, attorneys;

Ms. Verdesco, on the brief).

PER CURIAM

Defendant, Mr. R., appeals from a Final Restraining Order (FRO) entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Despite our usual deference to the trial judge's findings of fact, see State v. Locurto, 157 N.J. 463, 474 (1999); Cesare v. Cesare, 154 N.J. 394 (1998), several aspects of the trial proceedings raise questions about the fairness of those proceedings and the sufficiency of the evidence to support the judge's findings. We therefore reverse and remand for a new trial.

Although the parties' divorce proceeding was pending, both Mr. R. and Mrs. R. were living in the family home at the time of the incident that led to this action. They lived with their fifteen-year-old daughter, Susan, and four-year-old daughter, Emily, both of whom were present at the time. Existing problems between the parties apparently had been aggravated, among other things, by Mr. R.'s conviction for securities fraud, the parties' bankruptcy proceedings, and the impending forced sale of the family's home.

The obviously dysfunctional relationships within the family were the background for a brief but allegedly assaultive incident at about midnight on the night of February 24, 2005. Mrs. R. called the police, who came almost immediately and spoke with both parties and with Susan. As a result, Mrs. R. was arrested. Mr. R. filed a domestic violence complaint in the municipal court, and was granted a temporary restraining order (TRO) against Mrs. R. The next day, Mrs. R. filed a domestic violence complaint against Mr. R. The judge who issued that TRO was also the trial judge in this case.

On the return date of both TRO's, March 3, 2005, the judge was informed that Mr. R.'s attorney was on his feet in another courtroom. Rather than wait for him, the judge allowed Mrs. R.'s attorney to put Mrs. R. on the stand and to question her about alleged prior incidents of abuse, as to which Mrs. R. then was granted leave to amend her complaint.

I will amend the complaint and what we are doing, Mr. R., is these are amendments that you have just heard, so in addition to what appeared in the original complaint, it is amended. I am going to make copies and you will be able to share that with [your attorney] and we'll see everybody when he gets here and go from there.

Any victim or complainant is permitted freely to amend their complaints. So that's what we have done. Don't say anything. All you are doing is hearing the allegation. This isn't the trial. Okay.

Before his attorney appeared, Mr. R. attempted to ask the judge how to proceed:

MR. R.: I have a question.

THE COURT: What?

MR. R.: I have a question.

THE COURT: What?

MR. R.: Your Honor, does this mean that I should also amend the complaint from and the reason I am asking please

THE COURT: Wait. Wait. Wait a minute. Do I look like [your attorney]? That's a question you ask your attorney. Right? I don't know.

MR. R.: It is just something I want to do against the wife.

THE COURT: All right. You talk to him about that. I am telling you I have permitted this amendment. I am going to add it here. You'll have exactly what it is and then you can all figure out what you want to do.

Mr. R.'s attorney appeared later that morning, and his application for a one-week adjournment to meet the amended complaint was granted without objection.

The original TRO entered against Mrs. R. provided for residential custody of the two children with Mr. R., who was to remain with the children in the marital home. Pending the adjourned return date, the judge provided for Mrs. R. to have supervised visitation with Emily. But over Mr. R.'s objection, the judge appointed Mrs. R.'s sister, who testified that she was a state-certified foster parent, to supervise visitation. Mrs. R.'s sister was also a "protected party" under Mrs. R.'s TRO and would be a witness at the trial respecting Mrs. R.'s allegations of prior incidents. While that decision is not presented as an issue on this appeal, it was, in our view, a mistaken exercise of discretion that we will address further.

During the trial, which began on the adjourned return date of both orders and continued over several days, Mr. and Mrs. R. each testified, as did Susan, Warren Police Officer Robert Clapp, and Mrs. R.'s sister. The judge repeatedly criticized Mr. R. for allowing Susan to come to the courthouse, much less to testify. The parties told very different versions of the incident in which both wound up falling to the floor of their family room, in front of their children. Not surprisingly, each party's version was that the other was the aggressor and provoked the incident. At the end of all the testimony, the judge dismissed Mr. R.'s complaint and granted Mrs. R.'s application for a Final Restraining Order against him. In an oral opinion, the judge found Mrs. R. the more credible party. The judge discounted Susan's testimony which was consistent with Mr. R.'s testimony because the judge concluded that Mr. R. had coached her. The judge made no findings with respect to Officer Clapp's testimony.

We will summarize the evidence at trial. It was undisputed that on the night in question, after all four had eaten dinner together at a local restaurant, Susan stayed at home with Emily while each parent went on a separate errand. At some point, Emily became upset, and she or Susan spoke to each parent by telephone. After both parents returned home, Emily threw a toy at her mother, who then scolded the child. Emily started crying, and Susan went to hold and comfort her. From that point on, the parties' versions of events diverged.

Susan testified first. She and Mr. R. each testified that Mrs. R. cursed at Susan, called her a "whore," and hit Susan twice on the side of the head. According to each of them, Mr. R. intervened, coming between Mrs. R. and Susan, who was sitting on a footrest and holding Emily. Mr. R. put out an arm to stop Mrs. R., but tripped over something on the floor, lost his balance, and reached for Mrs. R. As he fell, he accidentally pulled her down with him. He exhibited bruising on the side of his face. A photo of Susan showed a red spot on her earlobe.

Contrariwise, Mrs. R. testified that Mr. R. hit her, intentionally knocked her down, and caused various bruises.

Mr. R. did not appear on time on March 22, when closing arguments were heard. At the end of the attorneys' arguments, the judge addressed Mr. R.:

THE COURT: Thank you. Mr. R., why were you late today?

MR. R.: I had somebody picking up my four-year-old for school and they were late and my daughter Susan was concerned. I told her she could not come but she was concerned that her mother was going coming back to the house today and I reassured her she wasn't. And plus I got your note.[]

THE COURT: Mr. R., you have not been on time for court appearances yet and I find it incredibly disrespectful that you continue to come when you want to come.

All right.

I will let you know momentarily my decision.

There is no further record respecting Mr. R.'s apparent explanation for why he did not leave Emily in Susan's care at home. Nor is there anything in the record of the prior court dates with respect to Mr. R. having been late any other time. After a recess, the judge announced her decision. Noting that it was entirely a matter of credibility, the judge proceeded:

And I start with the first witness in this matter and that was Susan.

I wasn't happy that Susan was called as a witness. [R.'s attorney] is correct. I think it should be a rare event when a child is called as a witness to domestic violence between her parents. That was certainly Mr. R.'s right to make that as a legal decision that he felt that was necessary and he made that decision. And she came in and testified.

And what I found most disturbing about Susan's testimony was there was no reluctance on Susan's part. She was in fact, it appears to me, quite happy to provide the testimony. And I found that to be very disturbing. Because assuming a child has been in this case she says her mother struck her. There is not a long history here at least nothing that I have heard that Susan has been abused or neglected. This was an incident things, perhaps, have not been happy in the family home and that is clear. You are getting divorced. You are sitting here.

But Susan, as I said, I wrote down: Happy. She was happy to be here and give testimony. And that concerned me. Because even assuming she had been struck by her mother, I would think that for any 15-year-old, it would be incredibly painful to have to come in to court and even telling the truth to have to testify against one of your parents. I wouldn't want to go at my age and testify against one of my parents. I think that would be horribly traumatic. So her demeanor concerned me.

What also concerned me was the similar and I am going to call it semantics used by Susan and Mr. R. in describing what happened and, specifically, the vocabulary that was used to describe the events, such as that the defendant hovered over Emily. They both used that phrase.

And the other phrase I found odd, and that's why I took note of it, and Susan used it first, because she testified first, was using what I called a positive description of a negative event. That the defendant had almost successfully done struck the child. She was almost successful.

And that turn of phrase was used again later in Mr. R.'s testimony. And that is an odd phrasing. That isn't: She almost hit her. She was close to hitting her. She just missed her. It was a very odd way to describe the event.

On direct testimony Susan testified that her father had pulled her mother off of her. And on cross-examination she testified that he didn't push or pull her mother. She became evasive when confronted about I'll call it the birthday telephone call. She didn't remember it. She couldn't remember exactly when it had taken place. And in my mind a very bright young woman. So I will say she pretended at that point not to understand the question. Pretended not to understand why these questions were being asked.

We fail to perceive how Susan's testimony about the so-called "birthday telephone call" translates to her being "evasive;" nor do we perceive the relevance of that testimony to Susan's credibility one way or another. It was a minor event on the traumatic night in question, and failing to remember some detail hardly seems worthy of any conclusion about Susan's credibility. The record reflects that February 25 was Mrs. R.'s birthday, and her sister called her directly after midnight to wish her a happy birthday. Susan did not remember the time of the call or whether her mother's birthday was the 24th or the 25th, or whether the children sang "Happy Birthday."

With respect to the incident itself, the judge gave this explanation for believing Mrs. R.'s version:

And Mr. R. testified that as all this began and as all of it came to fruition, Susan was on the footrest holding Emily. Ms. R. went over and hit her two times on the side of her face with the bottom of her fist. And before she could hit her a third time he intervened. He stepped in between. He pushed her away. He pushed her forearms back. And ultimately she lunged at him and scratched him. He pushed her. She lunged. He goes over a set of DVD's or whatever on the floor and he falls and he says he began falling and he reached out and grabbed her arms and she fell on top of him.

Again, I come down to what makes sense to me. Why would somebody reach out to grab the other person to fall on top of them? If you are falling you are going to put your arms down so that your head doesn't fall on the floor. You are not going to pull somebody on top of you. That makes no sense to me whatsoever, nor does it explain to me the bruises and contusions and the scratches that Ms. R. suffered.

If she [f]ell on top of him, her legs and elbows, etcetera, would not be I am not going to say covered because that would be hyperbole, but she has quite a number of bruises and scratches. And what makes more sense to me is her version of what happened at that point, which is he tackled her, that he threw her down, because in terms of her elbows, her knees, her shins going down on the floor, that makes more sense to me.

And I think that is what happened. There was a confrontation. They both agree on that. Emily threw the duck bill. Everybody agrees on that. Susan grabbed Emily, ran over to the footrest. We all agree on that.

The question is then what happened and it comes down to did Ms. R. hit Susan? Did she not? And we know if she hit Susan that would make me question, obviously, her credibility. But if she hit Susan, that in and of itself is not an act of domestic violence. DYFS, as I understand, is investigating that very event right now. If she hit Susan did Mr. R. have the right to intervene at that point? Certainly, he had the right to intervene. Did he have a right to throw her on the floor? I don't think so. I think stepping in between people, given the fact that he has indicated he's not afraid of Ms. R., and he said that on his cross-examination. He's not afraid of her. He reiterated on his cross-examination that this was about her hitting Susan. That that is what he felt the violence was. And, again, it just seems an act out of proportion to an event.

Mr. R.'s lack of fear of Mrs. R. justified dismissing his TRO. But it does not satisfy us as relevant to his credibility or as the basis for finding that Mrs. R. was a victim of domestic violence.

In finding Mrs. R. more credible, the judge relied largely on a few similarities in the words used by Mr. R. and Susan when each testified; photos of Susan that showed only a red earlobe, whereas next-day photos of Mrs. R. showed more bruising on her legs; and Mrs. R.'s testimony about past, unfiled incidents of alleged physical violence perpetrated on her by Mr. R.s

The judge also relied on certain photographs as "objective proofs" that supported Mrs. R.'s version. But the judge did not mention the testimony of the only disinterested witness, Officer Clapp, who spoke with Mrs. R. immediately upon his arrival at the house and saw no evidence of physical injury. Although Mrs. R. reported that Susan had slapped her in the face, he saw no signs of injury, and she did not report any at the time. The only visible mark he saw, after they reached the police station, was a mark on her leg that appeared to him not to be a fresh injury. The police photos of that mark, as well as Mr. R.'s cheek and Susan's ear, were in evidence and were supplied to us. None of those photos supports any claim of injury suffered at the hands of either party in this incident.

Another significant fact that appears to have been overlooked by the trial judge is that each party, as well as Susan, gave a statement at police headquarters immediately after the incident. Although those statements were marked for identification, and each witness confirmed the authenticity of his or her statement, none was admitted into evidence. What is apparent, however, is that each of those statements was consistent with the declarant's trial testimony. Were it otherwise, it is plain that the witness would have been confronted in cross-examination with his or her prior inconsistent statement. We emphasize this circumstance because the judge's findings respecting the credibility of the parties and of Susan turned largely on her conclusion that Susan's testimony in certain respects was so similar to her father's that it must have been coached.

But the chronology and timing do not support that conclusion. Mrs. R. herself testified that she called the police immediately after finding herself on the floor, and that the police arrived eight minutes after she called. It seems highly improbable, given the traumatic events preceding the call, that in that eight minutes Mr. R. had time to fabricate his version of the incident and "coach" Susan to tell the police the same thing.

This case highlights a potential conflict between the statute, N.J.S.A. 2C:25-29, with respect to prior bad acts, and the evidence rule, N.J.R.E. 404(b). The statute requires a judge to consider, as one of the non-exclusive factors relevant to determining whether an act of domestic violence has occurred, "[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse." See also Cesare, supra, 154 N.J. at 405. But Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Mr. R. argues that the judge's reliance on Cesare and on Mrs. R.'s testimony about prior incidents was improper. Cesare is often cited for the proposition, consistent with the statute, that

[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard. Furthermore, in making their determinations, trial courts can consider evidence of defendant's prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication.

[154 N.J. at 405.]

As Mr. R. contends, that discussion follows this introduction in Cesare:

The need to consider a plaintiff's history of abuse in evaluating a domestic violence complaint is consistent with the requirements of the two listed crimes at issue in this case terroristic threats and harassment.

[Id. at 402 (Emphasis added).]

Mr. R. argues that "unlike a domestic violence case involving allegations of terroristic threats or harassment, the significance of a previous history of violence is vastly diminished in an assault-based case either the assault happened or it did not."

We agree that prior bad acts are admissible only for specific limited purposes and not for the defendant's proclivity to commit the offense charged. Taking into account the evidence in the record, as well as the judge's findings and conclusions, it appears to us that after finding Mrs. R.'s testimony about alleged prior incidents credible, the judge used those incidents largely for the improper purpose of finding that Mr. R. was likely to have assaulted Mrs. R. on this occasion, and therefore the judge rejected the contrary testimony of Susan and Mr. R., denying that he assaulted Mrs. R., as well as Mr. R.'s testimony that the fall was an accident. Of course, N.J.R.E. 404(b) explicitly allows consideration of prior acts to resolve a dispute over whether the incident alleged as an act of domestic violence was an accident; no legal error exists if it was used solely for that limited purpose.

In considering the extent to which prior acts were used for an improper, as opposed to a permissible purpose, we note the judge's reliance on the testimony of Mrs. R.'s sister, who corroborated certain testimony of Mrs. R. about alleged misconduct of Mr. R. during a family vacation in North Carolina. It is troubling that the judge earlier had expressed her faith in Mrs. R.'s sister as a supervisor of visitation, apparently giving weight to her claim (apparently without verification) that she was a State-certified foster parent, and rejecting Mr. R.'s explicit concern about her lack of objectivity and the likelihood that she would assist Mrs. R. in influencing Emily.

Despite our usual deference to the findings of a Family Part judge in a domestic violence trial, see Cesare, supra, we are constrained to vacate the FRO issued in this case and remand for a new trial. We conclude that the judge used evidence of prior conduct for an improper as well as an acceptable purpose, placed weight upon irrelevant factors, and ignored other facially credible evidence in reaching her decision. Our reading of the record as a whole does not satisfy us that this was a fair trial.

We therefore vacate the Final Restraining Order. We remand to the Family Part for a new trial before a different judge, because this judge has already made findings with respect to the credibility of the witnesses. See Pressler, Current N.J. Court Rules, comment 4 on R. 1:12-1(d) (2006).

 

We have used fictitious names for the parties' daughters.

While the subsequent adjournment avoided a due process issue respecting notice, see H.E.S. v. J.C.S., 175 N.J. 309, 323-24 (2003); J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998), we disapprove of the procedure here that allowed opposing counsel to proceed, and Mrs. R. to testify, in the absence of Mr. R.'s attorney, an absence for which he was not responsible. Nor did the adjournment cure the impact of the judge's conduct over the proceedings at their very start.

Susan remained outside the courtroom, except when she testified.

The record reflects that in a meeting with a school counselor in which Susan and both parents recently had participated, the fifteen-year-old complained about the atmosphere at home and had asked either to be allowed to move out or for Mrs. R. to move out.

There is no other reference to any "note," but it seems unlikely that Mr. R. was referring to a note from the judge.

This court denied Mr. R.'s motion for leave to file a cross-appeal out of time.

(continued)

(continued)

17

A-4466-04T3

RECORD IMPOUNDED

February 9, 2006