L.V. v. A.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5568-06T25568-06T2

L.V.,

Plaintiff-Appellant,

v.

A.S.,

Defendant-Respondent.

____________________________________________________

 

Argued April 9, 2008 - Decided

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2511-07A.

Jane A. Herchenroder argued the cause for appellant.

Respondent did not file a brief.

PER CURIAM

Plaintiff L.V. appeals from the dismissal of her domestic violence complaint and the denial of her request for a final restraining order (FRO), N.J.S.A. 2C:25-29(b), following a trial in the Family Part. She contends that the judge failed to properly assess the evidence adduced, in particular according too much weight to her delay in filing the complaint, and concluding, as a result, that she failed to prove her need for an order of protection. We have considered her contentions in light of the trial record and applicable legal standards. We affirm.

The trial testimony revealed a long, contentious relationship that plaintiff and defendant began in 1991 for the sole purpose of having and raising children. Plaintiff never lived with defendant for any period of time, and claimed that she had "relations" with defendant on only three occasions. As a result, the parties had two children, both sons, T.S. and G.S., who at the time of trial were fourteen and thirteen years old respectively. Plaintiff was also the mother of a daughter, D.S., from a prior relationship, who was seventeen years old at the time of trial, and another daughter, B.V., who was eleven years old and also not defendant's child. For approximately four years before the trial, plaintiff resided with her domestic partner E.P.

Plaintiff testified that incidents of domestic violence started shortly after her relationship with defendant began. In August, 1992, plaintiff obtained an order of protection against defendant in the family court of Kings County, New York. In February 1995, the same court entered another order of protection based upon an incident of physical assault in which plaintiff claimed defendant had caused "bruises in [her] arm" and a "bruised" eye.

In June 2005, plaintiff obtained another order of protection from the family court in Philadelphia based upon an incident involving defendant and his mother. She also testified that in January 2003, defendant visited her and the children in Philadelphia ostensibly to deliver Christmas presents to them. She claimed that on that occasion, defendant threatened "that if he ever saw [her] with a guy . . . he was going to kill [her] and the guy." Defendant then punched her and held a kitchen knife to her throat in front of three of the children. Plaintiff testified that defendant then turned the knife on himself and threatened to commit suicide. She did not seek an order of protection as result of this incident because she was "tired and exhausted of seeking orders . . . and it's been ongoing for ten years."

From March 2 to March 6, 2007, defendant stood trial in Philadelphia on charges that he had sexually molested D.S.; he was ultimately acquitted on all counts. Plaintiff testified that during the trial, defendant approached her and her children in the courthouse. He made a threatening gesture by tracing his forefinger across his neck as he looked at plaintiff and the children. Plaintiff claimed defendant made a similar gesture during court proceedings in 2005.

On April 8, 2007, plaintiff sought a domestic violence temporary restraining order (TRO) in the Family Part in Camden County. She alleged in her complaint that defendant had discovered where she was now living in New Jersey, had been "lurking around [her] kids['] school" and her "neighborhood," and on March 2, 2007, had yelled profanities at her and G.S. while making the same throat-slitting gesture. Plaintiff set forth some of the prior history of alleged domestic violence and specifically referenced the Philadelphia courthouse incident. Based upon her complaint, an ex parte TRO was issued.

At trial, plaintiff described the March 2, 2007, incident that was the basis for the complaint. She claimed that she was walking G.S. home from school when the boy tugged on her arm and alerted her to defendant's presence in an automobile nearby. Defendant was following them slowly, calling out G.S.'s name, and making the same throat-slitting gesture. Plaintiff and her son ran home in fear. After testifying about the prior incidents discussed above, plaintiff told the judge she feared defendant "[b]ecause . . . he's done harm to me in the past [a] few times. The kids and I fear him."

On cross-examination, plaintiff acknowledged that she testified against defendant during the criminal trial in Philadelphia. She further acknowledged that her complaint against defendant's mother was made contemporaneously with C.R.'s attempt to secure a court order allowing her to visit her grandchildren. Plaintiff also admitted that the 1995 order of protection against defendant was ultimately dismissed by the court, though she protested when defense counsel characterized the dismissal as a finding against her on the merits. Plaintiff acknowledged that the incident involving her and her son took place a few days after the criminal trial ended in defendant's acquittal, and that indeed the events may not have taken place on March 2, 2007, as stated in the complaint, but perhaps "a few days . . . after the trial was over." Plaintiff also knew that after defendant was acquitted at trial, he filed a petition on March 9, 2007, seeking parenting time with his two sons.

G.S. also testified about the incident. He claimed that defendant followed him and plaintiff on foot, not in a car, while they were walking on a bike trail in Merchantville one day after defendant's trial concluded. G.S. also testified about the March 2007 courthouse incident, claiming defendant approached plaintiff and words were exchanged. G.S. stated that he "looked away" when he saw defendant because "[he] was scared of him." G.S. testified that defendant "hit [him] a couple of times" in the past.

G.S., who was eight or nine years old at the time, described the Christmas present incident in January 2003 for the judge. He heard defendant tell plaintiff that if he ever caught her with another guy he would kill her. G.S. heard further argument and saw defendant holding plaintiff on the floor with a knife to her neck. G.S. tried calling 9-1-1 at his mother's request, but defendant smacked the phone out of his hands. Defendant then took the knife, said he was going to kill himself, and left the house. G.S. testified the police responded shortly thereafter.

E.P. also testified on plaintiff's behalf regarding the Philadelphia courthouse incident. She saw defendant threaten her and plaintiff by "mak[ing] a sign like he was going to cut [their] throats." Defendant also said, "I'll get you." E.P. summoned the district attorney and a detective, but to her knowledge, no additional charges against defendant were pursued. E.P. recalled defendant making the same sign towards her and plaintiff during defendant's mother's 2005 trial in municipal court.

Defendant called his fiancée M.S. as a witness. She denied that defendant ever held a knife to plaintiff's throat during the Christmas present incident, and also claimed that plaintiff instigated the 2007 argument at the Philadelphia courthouse. M.S. claimed that she and defendant went to Florida after he was acquitted and stayed there for "about a month," thus establishing an alibi for the predicate incident of domestic violence alleged in plaintiff's complaint.

Defendant's mother C.R. testified on his behalf. She claimed that plaintiff screamed at defendant in the presence of the jury members at the trial. C.R. said that defendant went to a police officer and expressed concern that the jurors might be influenced. C.R. also testified that in June 2005, she and defendant visited plaintiff to "beg" for visitation rights so that she would not have to pursue a petition she had then recently filed in the Family Part. Plaintiff repeatedly cursed C.R., prompting her and defendant to eventually leave.

Defendant testified that after the trial in Philadelphia, he relaxed at home for a few days, went to New York City, and then filed his petition for visitation on March 9, 2007. Defendant and M.S. then went to Florida for two and one-half weeks. Defendant denied being in Merchantville on March 8 or 9, 2007, and denied following plaintiff or G.S. and making any threatening gestures.

Defendant also denied making any gestures towards plaintiff at his mother's 2005 municipal court trial or at his own 2007 trial in Philadelphia, claiming that plaintiff and E.P. instigated the incident at the courthouse. He claimed that while waiting in line, they taunted him, called him a pedophile, and said he would never see his kids, all in front of jury members. Defendant also denied arguing with plaintiff, threatening her with a knife, or threatening suicide during the Christmas present incident in early 2003.

Following summations, the judge found the predicate event based upon plaintiff's complaint and presentation was that she was "subjected to gestures from [] defendant and . . . threatening words . . . while she was walking with her son [] on a bike jogging trail in Merchantville, Camden County, New Jersey." The judge considered whether "the gestures[,] which had occurred in the past[,] consist[ing] of the defendant putting his finger across his neck, indicating . . . he was going to slit her throat, [and considering] the history testified to by the plaintiff . . . put her in fear of the defendant and would constitute at least harassment." The judge acknowledged that although the complaint indicated the incident occurred on March 2, 2007, it may have happened "a couple of days after [defendant's] trial was concluded in Philadelphia."

The judge first noted that he could not find that any of plaintiff's prior orders of protection were still in effect. See N.J.S.A. 2C:25-29(a)(6)(requiring the judge to consider "the existence of a verifiable order of protection from another jurisdiction"). He then began assessing the credibility of the various witnesses.

The judge found M.S.'s testimony to be incredible and "of marginal value at best" due to her personal interest in assisting defendant and the fact that her testimony was inconsistent with every other witness. To the contrary, the judge found E.P.'s testimony completely credible because of her courtroom demeanor and sincerity. He found C.R.'s testimony regarding the March 2007 courthouse incident credible, but only to the extent it did not conflict with E.P.'s. Though troubled by the fact that G.S.'s testimony regarding the Christmas present incident was nearly identical to plaintiff's, the judge nonetheless found the boy to be credible.

The judge determined "there was a relevant history of some past domestic violence" based on the testimony. He concluded that the March 2007 Philadelphia court house incident did occur, finding, "I have no doubt that something like what [E.P] described was exactly what happened." But he also noted, "As far as I can tell that's the one time . . . there may have been some real abuse [and] it doesn't appear as though any action was taken whatsoever." To the extent defendant denied any of the incidents, the judge found his testimony to be incredible.

The judge then turned to the allegation in plaintiff's complaint that defendant harassed, stalked, or committed a terroristic threat against her in Merchantville.

I heard testimony that was somewhat inconsistent regarding that incident. In any event, th[at] would have occurred around about the time that the defendant was admittedly in Camden seeking to have visitation with the children that he hadn't seen for three years almost immediately after the conclusion of a criminal trial in Philadelphia. This is somewhat understandable.

It's even understandable if on the way from New York to Camden, perhaps coming down 130, perhaps coming down from 38 off the Turnpike, going through Merchantville if he saw the plaintiff and the child and called out . . . . I don't even find that to be an act of domestic violence.

The plaintiff has the burden of proving by a preponderance of the evidence that the defendant's conduct was done with the intent or purpose to harass the plaintiff. She would have to show stalking. She'd have to prove by a preponderance of the evidence that the defendant engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family with a fear of death of himself or a member of his immediate family . . . . [T]he fact that [defendant] may have called out to his son is not inconsistent with somebody -- even if he did it, and he denies it, denies he was there, is not inconsistent with somebody who's seeking parenting time and visitation with a child he's had no time with for three years.

The judge then went on to consider plaintiff's delay in seeking the FRO, finding it "clear" that she "did not seek a restraining order until the defendant filed and attempted to serve his petition for custody or parenting time." The judge "ha[d] trouble reconciling that with the notion . . . that a restraining order is necessary to protect [plaintiff] from immediate harm or further acts of domestic violence." The judge noted "th[at] delay and the circumstances surrounding the filing of the petition clearly militate against my ability to conclude that by a preponderance of the evidence."

While acknowledging that defendant's "gestures and words" "in [m]unicipal court in [20]05 and . . . gestures and words in court in [20]07" could be sufficient to prove harassment, N.J.S.A. 2C:33-4, or possibly terroristic threats, N.J.S.A. 2C:12-3, both sufficient to establish "domestic violence," N.J.S.A. 2C:25-19(a), the judge ultimately was unsatisfied with plaintiff's proofs.

For the reasons that I've expressed I don't conclude that the plaintiff has met her burden of proving by a preponderance of the evidence that the incidents allegedly occurred in Merchantville in March of 2007 . . . as she . . . described.

Her testimony is inconsistent with [G.S.'s], and more importantly, even if it did the plaintiff waited nearly a month to seek a restraining order. She claimed that she knew she had a restraining order--thought she had a restraining order from Philadelphia. The documents clearly belie that . . . . She not only took no action in that regard, but she waited nearly a month to come to this Court to seek a restraining order.

In order for me to conclude the plaintiff is entitled to a restraining order I would have to grant it to protect the plaintiff from immediate danger of further acts of domestic violence. I don't have any proof that would enable me to reach that conclusion or to conclude that the plaintiff had established that by a preponderance of the evidence.

The time that elapsed between incidents, the time that elapsed before she came to court to seek a restraining order and the fact that this and other orders were sought after custody or parenting time was in dispute belie that a restraining order is necessary to protect from further acts of domestic violence.

I conclude what we essentially have here is a plaintiff who is convinced and believes in her own mind that the defendant is a danger to her and her children. She may be right . . . . She believes that he is somebody that should be kept from her and her children. She may be right. I don't know.

I can't simply conclude based upon her wishes that she's proven her case by a preponderance of the evidence . . . .

[Emphasis added.]

The judge dismissed the complaint and this appeal ensued.

Before we turn to plaintiff's specific arguments, we set forth some general principles that guide our consideration. "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

Plaintiff argues that the judge gave undue weight to the one month delay between defendant's threatening gestures and the filing of the complaint. She cites a number of reported cases in which our courts have explained the victim's counter-intuitive delay, or outright failure to seek help, as endemic of the dynamics of any abusive relationship. See Wildoner v. Borough of Ramsey, 162 N.J. 375, 392-93 (2000)(noting that "victims of domestic violence often do not report their abuse to law enforcement agencies"); Tribuzio v. Roder, 356 N.J. Super. 590, 597 (App. Div. 2003)(noting it is "somewhat typical in domestic abuse situations that a victim will try to avoid signing a complaint . . . hoping the perpetrator will just leave her alone"). Plaintiff also argues that the judge failed to appropriately consider the factors set forth in N.J.S.A. 2C:25-29(a) in deciding whether to issue an FRO.

We think it is clear that the judge determined that plaintiff had failed to prove either that the incident in Merchantville occurred or that it was an act of domestic violence. We accord deference to this conclusion and find no basis to disturb the factual findings made by the trial judge. Cesare, supra, 154 N.J. at 413. Although the judge was less than clear in ruling that defendant had in fact committed an act of domestic violence against plaintiff during the Philadelphia courthouse incident, we assume for the moment that he did conclude that defendant harassed her or made a terroristic threat against her at that time.

However, we have recently reiterated that the finding of a predicate act of domestic violence, as listed in N.J.S.A. 2C:25-19(a), is only the first step of the judicial inquiry into whether an FRO is appropriate. "[W]hen determining whether a restraining order should be issued based on . . . any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property." Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006)(citing N.J.S.A. 2C:25-29(a)(1) and (2)). "[U]pon a finding of the commission of a predicate act of domestic violence," "[t]he second inquiry . . . is whether the court should enter a restraining order that provides protection for the victim." Ibid. In other words, the mere finding of the occurrence of a predicate act of domestic violence, standing alone, is insufficient to support the issuance of an FRO. Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999). While this second consideration "is most often perfunctory and self-evident," an FRO should only issue after "an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), [and] to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

Plaintiff contends that the judge placed too much emphasis upon her delay in seeking the FRO. Plaintiff argues that the delay in seeking the FRO was, in part, due to her belief that a prior order entered in Pennsylvania was still in effect and that the police in Merchantville would honor that order. She testified that only after she found out that the Pennsylvania order had expired did she seek this order, and that she did so "immediately."

However, plaintiff never testified that she attempted to have the New Jersey police enforce the Pennsylvania order contemporaneous with any of the incidents. More importantly, we think it is clear that the judge saw the delay as evidence of something else, i.e., plaintiff's motivation for filing the complaint. He determined that plaintiff's decision not to seek the FRO sooner was not the result of her belief that an order of protection was already in existence, or her belief that defendant posed an "immediate danger" to her or her children. N.J.S.A. 2C:25-29(a)(2). Instead, he concluded that plaintiff "came to court to seek a restraining order" on this and other occasions only "after custody or parenting time was in dispute." We find no basis to disturb this factual finding either.

Plaintiff next argues that the judge simply failed to give adequate consideration to the statutory factors that inform the decision to grant any FRO, in particular, N.J.S.A. 2C:25-29(a)(1), (2), and (4) which provide that the judge shall consider

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

. . . .

(4) The best interests of the victim and any child

We disagree.

The judge clearly considered the prior instances of domestic violence between the parties and found that plaintiff had established that defendant had made threatening gestures and verbal threats against her in the past. The judge also clearly considered whether plaintiff demonstrated a need for the FRO pursuant to factor (2), and, as the discussion above indicates, he determined that she had failed in that regard.

While the judge did not specifically address factor (4) in terms of the parties' children, and there was testimony that G.S. feared his father and had been struck by defendant in the past, we view the judge's decision not to analyze the situation in any detail as occasioned by the fact that he was aware that defendant had filed an application for parenting time. Indeed, the judge implicitly found that it was the filing of defendant's petition that motivated plaintiff to bring this action.

We concede plaintiff's argument that the concerns expressed by G.S. during his testimony are worthy of serious analysis and consideration. However, those concerns are best addressed in the context of any plenary hearing that may take place regarding defendant's parenting time request, and not in an action under the Domestic Violence Prevention Act, N.J.S.A. 2C:25-17 to -35. See Kamen, supra, 322 N.J. Super. at 229 (noting "concern that the Act may be misused in order to gain advantage in a companion matrimonial action or custody or visitation action"). In that context, the judge can avail himself or herself of the myriad of evaluative reports that are available in the Family Part, as well as more expansive testimony on the issue, and determine what is in the best interests of the parties' two children. Obviously, the judge may impose whatever conditions necessary to effectuate that goal.

 
In short, we cannot conclude that the judge failed to adequately consider or weigh the statutory factors set forth in N.J.S.A. 2C:25-29(a).

Affirmed.

We have fictionalized the initials of T.S. to distinguish him from defendant.

Plaintiff referred to this daughter by another name during the trial, however, we use these initials based upon the name of her daughter plaintiff supplied in her domestic violence complaint against defendant.

Plaintiff testified to another incident in which defendant "lacerated [her] ear" though it is not clear whether this resulted in a third order of protection. If so, it is not part of the record.

Plaintiff claimed that she filed a complaint against defendant's mother, C.R., who was found guilty of harassment, placed on probation, and ordered to attend anger management classes.

(continued)

(continued)

18

A-5568-06T2

RECORD IMPOUNDED

April 29, 2008