MARIA QUESADA v. JORGE M. GONZALES

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(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0634-07T10634-07T1

MARIA QUESADA,

Plaintiff-Appellant,

v.

JORGE M. GONZALES,

Defendant-Respondent.

 

Argued October 6, 2008 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-1099-07.

Jane A. Herchenroder argued the cause for

appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Maria Quesada appeals from an order of the Chancery Division, Family Part, entered on August 20, 2007 that dismissed her temporary restraining order (TRO) and denied her request for a final restraining order (FRO) against defendant Jorge M. Gonzales. We affirm.

The parties are married but separated. Quesada filed a domestic violence complaint, pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the Act), against Gonzales on February 27, 2007 and was granted a TRO. The complaint was based on allegations of harassment. More particularly, Quesada alleged that on the preceding day at about 10:00 p.m., Gonzales called her cell phone and stated he was going to beat her up wherever he sees her. The complaint also alleged that Gonzales often would pick up the couple's two children from school without Quesada's knowledge and that Gonzales had threatened to take the children to Costa Rica and to jeopardize Quesada's immigration status. In addition, the complaint alleged a prior history of domestic violence consisting of multiple instances of harassment and simple assault.

An ex parte TRO was issued in Quesada's favor. The TRO provided that both parties were to appear for a final hearing on March 5, 2007, however, Gonzales had not been served by that date. Consequently, the TRO was continued in full force and effect pending service and a hearing. On March 9, 2007, a modifying order was entered upon Gonzales's appeal to permit him supervised visitation with the children and to schedule the final hearing on the complaint for March 22, 2007. Eventually, the matter was heard on April 26 and August 14, 2007. Both parties were represented by counsel. On August 20, 2007, the parties and counsel appeared, and the court rendered its decision to deny the FRO.

The facts set forth herein are derived from the testimony presented in the hearing. On April 26, Officer Israel Penia of the Trenton Police Department and plaintiff Maria Quesada testified. On that date, it was also agreed that Gonzales's landlady, Margarita Duarte, would be an acceptable supervisor for purposes of visitation between Gonzales and the children. On the second day of trial, August 14, Quesada presented testimony by Carmen Guagliardo, Tatiana Durbak and Carmen Vargas. Gonzales presented as witnesses George Swales, Jr. and Rafael Cortez. Jorge Gonzales testified on his own behalf.

Officer Penia related that he first met both parties on October 26, 2006 when he was detailed to the couple's residence about family trouble. When Penia arrived, Quesada was "highly upset" and shaking. She explained that her husband had been banging on the door and the window and calling her name. As she was giving that explanation, defendant approached. Gonzales was cooperative and calm. He admitted to Officer Penia that he had indeed been banging on the window and the door because he had observed "a male suspect" inside with plaintiff, and he wanted to find out the identity of the suspect. No arrest was made at that time, and no domestic violence order was sought.

Penia's next encounter with Quesada was four months later, on February 26, 2007. On that date, Quesada came to police headquarters and requested a Spanish-speaking officer to take a report. She stated then that her husband was calling her cell phone on a daily basis, harassing and threatening her. She indicated she wanted a restraining order. Penia testified that while he was speaking to Quesada, Quesada's phone rang over and over again, and she told him that it was her husband calling. Penia testified he listened to a telephone message and, based upon his prior contact with Gonzales in October 2006, he recognized Gonzales's voice. Penia related that the caller spoke in Spanish, "matter of factly in an unagitated voice," stating "wherever he see[s] her, he's going to beat her up." Penia recorded that message in his investigation report, and although he did not recall whether Quesada listened to that message in his presence, he recalled that "she was shaken up." Concerning her demeanor, he testified "every time she tried to explain to me . . . a different incident that occurred in the past, she would break down and cry."

Based upon his having heard the telephone message, the officer filed his investigation report and also filed a complaint for domestic violence against defendant. The investigation report was admitted into evidence without objection.

Quesada testified that she was afraid of her husband for several reasons:

For too long, when I decided to go to the police statement [sic] and make the report and ask for the restraining order, I was suffering for phone calls every day, more than five, six, seven phone calls every day. He was following me everywhere. He picked up my kids without my consent.

. . . .

Sometimes he pick up my kids after school without telling me. He calling me all the time. Every single time I talked to him was a big fight or argument or something that was no big deal, just because I ask him move out of the house and leave me alone with my kids. He always threatened me with calling immigration to me and call the police and take my kids back to Costa Rica. So, I live in that situation for too long. And I always was scared until when I can't take it no more and I decided going to the police. In my own apartment, he abused me, sex on me. He forced me to have sex with him when I was separated already. He is still living in the apartment but we live in separate rooms. And I guess after that, everything got worse and worse.

According to Quesada, the referenced sexual assault occurred in February 2005, two years before the subject domestic violence complaint was filed. Gonzales moved out of the marital home in June 2006. The incident which prompted the first contact with the police and the investigation by Officer Penia occurred in October 2006. At that first encounter, Penia explained to Gonzales that Quesada had a right to live alone in the apartment with the children and without harassment or unwanted visits from Gonzales. Quesada testified, however, that five minutes after Penia's explanation and departure, Gonzales called her on her cell phone again, claiming he forgot to ask her about some sort of paper. To her mind, he was just looking for any kind of excuse to call her. She elaborated, "[h]e just wants to make trouble for no reason. That means he's going to call me all the time, follow me everywhere, make an issue about my kid's stuff when there's no big issue about that, you know."

Quesada testified that on a day when she had an appointment with a psychologist, she had asked her mother to pick up her daughter and to wait for her son at Quesada's house after school. Quesada received a phone call from her mother, who "was really scared," stating that when she arrived to pick up her daughter, the child was not at school. Quesada called Gonzales, and learned that her daughter was in the car with him. She indicated she told Gonzales not to pick up the child "if it's not your day." To that, he insisted he had "the right to pick up my daughter when I want even if I don't tell you." That evening, Friday, February 23, Quesada went to the police station and tried to get a restraining order. Because it was late, she was told to return on Monday, February 26, which she did.

On cross-examination, counsel for defendant questioned Quesada's motivation for filing her complaint. He inquired whether plaintiff was under the impression she would be allowed to stay in the country beyond the date she might otherwise be required to leave with her husband (whose visa had expired) and whether she thought she could remain in this country by divorcing her husband and marrying an American citizen. Quesada denied such motivations for her complaint, and on redirect examination, she expounded on the underlying causes for her actions:

My kids have clothes and food and roof because I work every day for my kids. And being close to their father for me is really annoying because he just want to -- if I don't do everything he wants, he's going to do something else, always like that.

If I don't let him see my kids, he's going to go to this place to get courthouse and say things against me. If I -- I mean, when the day he abused me, he come to my room with a Bible open. He told me the Bible said the wife never can say no to the husband. I was scared because he always put in the top, you are under my visa. If you don't do everything I say, I'm going to call immigration to you. I'm going to leave you alone and I'm going to call immigration. If you threw me out for the house, I'm going to call immigration to you. I'm going to take my kids away from you. I'm going to go back to Costa Rica with my kids.

I took my kids' passport because I was scared one day I go to work and when I come back, he is not home with my kids . . . . He always use his status to make me feel scared.

Because the trial could not be completed on April 26, 2007, the court established an interim schedule for parenting time, with visitation between Gonzales and the children supervised by Gonzales's landlady, Margarita Duarte. The court denied Gonzales's request for overnight visitation.

On the continuation of the trial on August 14, 2007, Carmen Guagliardo was called as plaintiff's next witness. Guagliardo testified that he did not know Jorge Gonzales, but that he knew the person sitting at counsel table - Gonzales - as Jose Valenziano. According to Guagliardo, Valenziano had worked for him three years earlier, but he now is an independent driver who buys bread from Guagliardo and resells it.

Tatiana Durbak, an immigration attorney, testified that Quesada had come to see her on numerous occasions because Quesada wanted to know about immigration options. She and Quesada had discussed visas. Quesada was "extremely stressed out" and had told Durbak that "she was afraid that her husband was going to come into her house without permission," that he would leave telephone messages on her voicemail telling her he could not live without her, and once he told her he was going to kill himself. Durbak heard certain voicemail messages that Quesada told her were from her husband, but Durbak had never spoken to Gonzales. Other than on the basis of her client's statements to her, Durbak had no knowledge whose voice was on the recordings.

The final witness called on Quesada's case-in-chief was her mother, Carmen Vargas. Vargas related her observation that Gonzales was always arguing with Quesada, and he was always saying to her that he was going to go off to Costa Rica, and he was going to take the children away. Vargas described how anxious she became when she was asked by Quesada to pick up Marianna at school and the child was not there.

The first two witnesses called on behalf of Gonzales were George Swales, Jr. and Rafael Cortez. Both witnesses offered testimony concerning Gonzales's character. Swales testified he worked part-time as a bar manager. He had worked with Gonzales, who was a waiter, for a year and a half. He knew Gonzales by the name, George. Swales had never witnessed anything that appeared to anger George. He had never heard George swear, use any derogatory term or express any ill will in referring to Quesada.

Cortez expressed similar observations concerning Gonzales. Cortez described Gonzales as "very passavist [sic]. Very calm."

Gonzales testified in his own behalf. He denied that he had ever threatened, hit or raped his wife. Gonzales testified that, as an adult, he had never hit anyone. He acknowledged that he called his wife frequently, but he insisted that his calls concerned the welfare of the children. He presented telephone records to refute the claim that he had called Quesada's cell phone forty or fifty times. Gonzales testified that he moved out of the marital apartment in June 2006, at his wife's request, "because she didn't feel right being with me."

According to Gonzales, he and Quesada had an arrangement, pursuant to which he was to pick up the children. He took their son to summer camp every day, and he would pick up their daughter at school with the consent and at the direction of his wife. Only once did he pick up their daughter when it had not been planned with his wife.

Gonzales acknowledged that his student status had expired in October 2006 and that the immigration status for him and his family was unsettled. He obtained an extension of his S-1 visa through July 2007, but his attorney represented to the court during his summation, that Gonzales had plans to leave the country and that he had stayed to that point to resolve this matter.

In an oral opinion rendered in open court on August 20, the trial judge summarized the testimony of the witnesses and made certain specific findings of fact. In general, the judge found "the testimony of the defendant [Gonzales] more credible than the testimony of the plaintiff [Quesada]." She concluded that plaintiff had "failed to prove by a preponderance of the evidence the elements of the events that [were] brought against defendant . . . ." Referring to her review of defendant's phone records, the judge found that those records did not corroborate plaintiff's claim of repetitive, harassing phone calls. In regard to the care of the children, the court observed that Quesada had knowledge that Gonzales was picking up the children from school on a regular basis and that he was actually in charge of doing so.

The court noted that there were no allegations in plaintiff's complaint about defendant stalking her or banging on her window or peering in her windows. Such allegations were, on the other hand, a significant focus of plaintiff's testimony during trial. Similarly, the court noted that plaintiff's complaint did not list rape among the past acts of domestic violence. Yet, she testified that in February 2005, after the couple had separated but were still living in the same apartment, defendant forced her to have sex with him.

The trial court also noted that, at the time of trial, defendant's visa had expired and that defendant purportedly would be leaving the country soon after the completion of the trial proceedings. The court recognized that plaintiff, whose immigration status was related to defendant's status, had retained the passports of the children, thereby reducing or eliminating the risk that defendant could unilaterally take them if he left for Costa Rica. The court observed that the proofs revealed that Quesada had an understanding that if she were granted a restraining order against defendant, she might be able to remain in the United States even if defendant was deported. The court denied the request for a FRO and dismissed the TRO.

It is well established that "[t]he scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 412 (1998). In general, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974)). The question on appeal is not whether the appellate court would have reached a different conclusion had it been the court of first instance. State v. Locurto, 157 N.J. 463, 471 (1999). "The aim of the review . . . is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Deference is therefore especially appropriate where, as here, "'the evidence is largely testimonial and involves questions of credibility.'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). In addition, family courts have special expertise in the field of domestic relations. Ibid. "The Legislature has reposed grave responsibilities on Family Part judges to ensure the safety and well-being of women and children . . . ." Brennan v. Orban, 145 N.J. 282, 304 (1996).

The trial court, therefore, must first determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). If so, the court must then determine whether it should enter a restraining order for the protection of the victim. Id. at 126.

Here, the trial judge expressly found that defendant was more credible than plaintiff and that plaintiff had failed to satisfy her burden of proof. Notably, even though Officer Penia, who had met defendant on one occasion four months earlier, and Tatiana Durbak, who had never spoken to defendant, heard a voice on plaintiff's telephone saying "wherever I see you, I'm going to beat you up," defendant denied making that threat. Bearing in mind the better perspective of the trial judge to assess credibility, we defer to her assessment.

Moreover, the trial court determined that plaintiff failed to demonstrate the elements of harassment, and we are not inclined to disturb that determination. Locurto, supra, 157 N.J. at 471. "A violation of subsection a [of N.J.S.A. 2C:33-4] requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." State v. Hoffman, 149 N.J. 564, 576 (1997). A purpose to harass must be established, however, such a purpose "may be inferred from the evidence presented," id at 577, "and from common sense and experience." H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003). In this case, there is no claim that the communication was made "at extremely inconvenient hours, or in offensively coarse language." Nor was the manner of the alleged communication itself likely to cause annoyance or alarm. To the contrary, Officer Penia described the manner as "matter of factly in an unagitated voice." Thus, the communication was devoid of anger, passion or intimation, and the potential of the words themselves to cause annoyance or alarm is not readily apparent.

The trial court also rejected plaintiff's claim that defendant had repeatedly called her or that his calls to her were for the purpose of harassment. See N.J.S.A. 2C:33-4c (providing that "a person commits a petty disorderly persons offense if, with purpose to harass another, he . . . engages in any course of . . . repeatedly committed acts with the purpose to alarm or seriously annoy such other person").

Finally, N.J.S.A. 2C:33-4b prohibits a person from subjecting another to "striking, kicking, shoving or other offensive touching," none of which is alleged to have occurred. That subsection also proscribes, however, the threatening of such conduct. Hence, if defendant threatened to beat plaintiff wherever he sees her, that might constitute evidence of a violation of N.J.S.A. 2C:33-4b; yet, in and of itself, it does not constitute an act of domestic violence. Bittner v. Harleysvile Ins. Co., 338 N.J. Super. 447, 454 (App. Div. 2001). We recognized in our opinion in Bittner, that "[i]t is an oversimplification to consider that proof of the requisite elements of one of the criminal offenses referenced in the Act, in and of itself, constitutes an act of domestic violence." Ibid. There, we also reiterated the following observation:

The Legislature, however, did not intend that:

the commission of any one of these acts automatically would warrant the issuance of a domestic violence order. The law mandates the acts claimed by plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2). This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened. This is the backdrop on which [a] defendant's acts must be evaluated.

[Bittner, supra, 338 N.J. Super. at 454 (quoting N.B. v. T.B., 297 N.J. Super. 35, 40 (App. Div. 1977)).]

Thus, the trial court was justified in its consideration of the context and backdrop of the parties' relationship, including any ulterior motive of the victim whose safety is allegedly threatened.

Again, we note that defendant expressly denied that it was he who made the threat that he would beat her up wherever he sees her.

Further, and assuming that defendant uttered those words recorded in the cell phone message, they do not constitute a terroristic threat. N.J.S.A. 2C:12-3b provides that

[a] person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

In this instance, there was no threat to kill, and there was no evidence of circumstances that would reasonably cause the victim to believe the immediacy of the threat or that it was likely to be carried out. N.J.S.A. 2C:12-3; State v. Conklin, 394 N.J. Super. 408, 412 (App. Div. 2007).

The trial court found defendant more credible than plaintiff, and in the absence of any tangible signs or an historical basis for the trial court to conclude that plaintiff is in need of a protective order, we will not override the assessment of the trial court. A final restraining order "shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence." R. 5:7A(d).

In the end, we have undertaken a careful review of the record and, based on that review, we are satisfied that the trial court acted within its province when it determined that plaintiff had failed to meet her burden of proof by a preponderance of the evidence.

Affirmed.

 

This court entered, on its own motion, an order on May 12, 2008, suppressing the brief of respondent Jorge M. Gonzales for his failure to file a timely answering brief.

In the transcript, the witness's name appears as Israel Penia, however, on the investigation report completed by the officer, he appears to identify himself as Israel Bonilla. We refer herein to the name used in the transcripts, Israel Penia.

In N.J.S.A. 2C:25-19a, there are fourteen specifically listed acts, with reference to the sections of the New Jersey Code of Criminal Justice, the occurrence of which may constitute domestic violence when inflicted upon a person protected under the Act. One of the listed acts is harassment, N.J.S.A. 2C:33-4.

(continued)

(continued)

18

A-0634-07T1

RECORD IMPOUNDED

June 17, 2009


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