DANIELLE L. GATANIS v. MARK A. GATANIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1263-07T11263-07T1

DANIELLE L. GATANIS,

Plaintiff-Appellant,

v.

MARK A. GATANIS,

Defendant-Respondent.

______________________________________________________

 
Argued Telephonically October 27, 2008 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FV-13-771-08B.

Veronica M. Davis argued the cause for appellant (Ms. Davis, attorney; Marybeth Hershkowitz, on the brief).

Edward Fradkin argued the cause for respondent.

PER CURIAM

Plaintiff Danielle L. Gatanis appeals from an order dated October 12, 2007, denying her request for a restraining order under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, against her husband, defendant Mark A. Gatanis. The parties were married on July 3, 1997, and there are three children born of the marriage, ages nine, eight and six, at the time when the decision below was rendered. We have considered plaintiff's contentions in light of the facts and the applicable law, including the limited scope of our review, and we affirm.

The parties have filed various domestic violence complaints against each other, one of which, FV-13-412-08-B, led to a five-day hearing. After that hearing, the parties entered an agreement whereby plaintiff's domestic violence complaint was dismissed. Civil restraints, which included a visitation arrangement, were concurrently entered in the pending divorce action filed by plaintiff, FM-13-566-08-B. By way of further background, on December 14, 2006, an officer of the Brielle Police Department responded to the marital home and witnessed plaintiff, in the driveway, ripping defendant's shirt and scratching him. Plaintiff was intoxicated and the three children were outside the house witnessing the incident. The responding officer placed plaintiff under arrest and filed a complaint in the municipal court against her for simple assault.

The next day, plaintiff went to the Brielle Police Department and alleged that defendant had punched her in the face, causing her lip to swell, and that he had caused several other bruises on her body. At the trial that ensued [in municipal court], Chief of Police Michael Palmer identified photographs taken of plaintiff by the police. Although those photographs lacked the usual accompanying documentation, Chief Palmer testified that he was certain they were taken by the Brielle Police.

On August 17, 2007, plaintiff went to the police station alleging that defendant threw her cell phone on the driveway, causing damage. According to Officer Ronald Sofield, after plaintiff obtained a new phone and returned home, she was once again confronted by defendant, who grabbed the second cell phone and dislodged one of plaintiff's artificial nails in the process. Officer Sofield filed a complaint in the municipal court against defendant for simple assault and criminal mischief. On that same date, plaintiff requested and was granted a temporary restraining order (TRO).

On September 7, 2007, a trial was held in the Family Part to address plaintiff's domestic violence complaint and her request for a final restraining order (FRO). At trial, the court heard testimony from plaintiff and her three witnesses: plaintiff's father, Chief of Police Palmer and Officer Sofield.

Plaintiff's father, whom the court found credible, testified that plaintiff attended several Alcoholic Anonymous meetings, and that he had witnessed defendant arguing with plaintiff "in a loud and abusive manner, pushing her and causing her to walk backwards as [defendant] approached her."

On October 3, 2007, while the domestic violence hearing was still ongoing, plaintiff filed a complaint for divorce. The next day, the Family Part judge assigned to the ongoing domestic violence dispute advised the parties that he had also been assigned their divorce case. The parties entered into a "nesting agreement," with parenting time for defendant in the marital home and the interim exclusion of plaintiff from the home. Plaintiff then dismissed her domestic violence complaint and requested an order to show cause with civil restraints in the divorce action.

The Family Part judge found that the nature of the relationship and the allegations and conduct by the parties showed "that the animosity between the parents ha[d] reached the level that [did], under these circumstances, require the intervention of the [c]ourt." However, considering the interests of the children, the judge denied plaintiff's request to enjoin defendant from entering the marital home and instituted the so-called "nesting arrangement" for parenting time. To that end, the judge entered an order to show cause with temporary restraints pursuant to Rule 4:52, prohibiting the parties from communicating with each other, "except by email or text message, and except as it relate[d] to the children," and from "disparaging each other in the presence of the children." The judge informed the parties that he would be appointing a guardian ad litem to represent the children.

On the same day the order was entered, defendant had his first parenting time at the marital home, under the civil restraints. According to plaintiff, when she returned to the marital home the following day, the house was in "disarray," and defendant had removed her clothes from her bedroom closet and dresser, "shoved" them in garbage bags and moved them to the basement. He also had placed an almost empty bottle of vodka, a wine opener and wine corks in various places in plaintiff's bedroom. Additionally, after plaintiff was unable to set her home alarm, she called the alarm company and was informed that defendant had called and changed the alarm code and password. Plaintiff testified that because she could not restore the alarm status that day, she was "terrified . . . that [defendant] would break in" and harm her or "take the children away."

On October 11, 2007, plaintiff filed another order to show cause in the matrimonial action. She alleged "that defendant violated the trial court's October 4, 2007 Order by disabling the alarm system in the marital home." Plaintiff also requested modification to the parenting time schedule. The Family Part judge denied plaintiff's application to modify parenting time but stated that, at the appropriate time, the judge would consider imposing sanctions and penalties if he determined that plaintiff was entitled to such relief.

On October 12, 2007, plaintiff filed another complaint under the Act, seeking a TRO on grounds of harassment, based upon the same allegations that were raised in the October 11, 2007 order to show cause. Based on the evidence presented on October 11, 2007, the Family Part judge found that defendant's actions constituted a form of communication and "the communication that was intended by the defendant leaving the alcohol bottles is that . . . in the custody battle . . . he views her as an unfit mother." However, the judge concluded that the defendant's acts, "even if arguably harassment, as defined by N.J.S.A. 2C:33-4, were not acts of violence nor posed any threat of violence under Silver [v. Silver, 387 N.J. Super. 112 (App. Div. 2006)]." The court concluded that "[a]t best, they might be viewed as 'domestic contretemps.'" The court further stated:

In this instance, there is already a Court order in place that prevents any contact by the defendant to the plaintiff except by email and text message. And then as it only relates to the children.

. . . .

Even under a temporary restraining order, . . . the Court can still allow the parenting time to go forward even in with [sic] certain conditions. Those conditions are already in place.

The judge concluded that the evidence was insufficient to support a finding of "immediate danger to person and property" and denied plaintiff's application for a TRO. Plaintiff filed this appeal timely. On appeal, plaintiff contends that the trial court erred by concluding that Silver mandated a denial of her application for a TRO, in not finding that [defendant's] course of conduct constituted harassment under N.J.S.A. 2C:33-4(a) and (c), and by failing to give weight to the course of defendant's prior conduct to determine if plaintiff was entitled to a TRO.

Under the Act, domestic violence occurs when an adult or emancipated minor commits one or more of the enumerated acts upon a person covered by the act. N.J.S.A. 2C:25-19a. Harassment as defined by N.J.S.A. 2C:33-4 is one of the predicate acts that constitute domestic violence. Ibid. Significantly, the commission of a predicate act does not automatically "warrant the issuance of a domestic violence order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Rather, consideration of a domestic violence complaint is a two-fold task. Silver, supra, 387 N.J. Super. at 125. "First, the judge must 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." Ibid. Second, upon a finding that the defendant committed a predicate act of domestic violence, the court determines whether it should "enter a restraining order that provides protection for the victim." Id. at 126.

For the second prong, "the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. The factors which the court should consider include, but are not limited to:

(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;

 
(3) The financial circumstances of the plaintiff and defendant;

 
(4) The best interests of the victim and any child;
 
(5) In determining custody and parenting time the protection of the victim's safety; and

 
(6) The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25-29a.]

While not all of these factors have to be incorporated in the court's findings, "the Act does require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.'" Cesare v. Cesare, 154 N.J. 394, 401-02 (1998) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995)).

Ordinarily, domestic violence is "'more than an isolated aberrant non-violent act. While a single sufficiently egregious action may constitute domestic violence even if there is no history of abuse between the parties, a court may also determine that an ambiguous incident qualifies as domestic violence based on finding previous acts of violence.'" Silver, supra, 387 N.J. Super. at 123 (quoting Kamen v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999)). However, the Act is not intended to encompass "ordinary domestic contretemps." Corrente, supra, 281 N.J. Super. at 250. Rather, "[t]he Act is intended to assist those who are truly the victims of domestic violence." Silver, supra, 387 N.J. Super. at 123 (quoting Kamen, supra, 322 N.J. Super. at 228).

In Silver, we discussed our conclusion in Kamen that "although the predicate act of trespass had occurred, . . . a domestic violence restraining order was not warranted because the trespass was 'unaccompanied by violence or a threat of violence.'" Silver, supra, 387 N.J. Super. at 127 (quoting Kamen, supra, 322 N.J. Super. at 228). In Silver, the defendant had committed both criminal trespass and assault, an act of violence, and there was "an acrimonious relationship, manifested by volatility and rage." Thus, we held that "the trial court should determine whether a domestic violence restraining order [was] necessary to protect [the victim] from immediate danger or further acts of domestic violence." Silver, supra, 387 N.J. Super. at 128.

We distinguished Kamen from Silver noting that in Silver, "by contrast, the act of trespass was accompanied by an act of violence in the form of an assault." Id. at 127. In Kamen, the defendant had entered her father's house to visit with her children at a time when no visitation was scheduled and her father was not home. Id. at 225. Defendant's step-mother asked her to leave three times, but defendant refused. Ibid. Defendant's father, who had legal custody of his grandchildren, filed a domestic violence complaint against defendant based on the predicate act of trespass. Ibid. There, we determined that a restraining order was not necessary because the plaintiff was not in immediate danger. Id. at 228.

In the case at bar, plaintiff contends that the trial court erred in not finding that [defendant]'s course of conduct constituted harassment under 2C:33-4(a) and (c), and in its interpretation of Silver. The trial court stated that "in order for there to be a temporary restraining order and/or a final restraining order . . . there has to be violence or the threat of violence in the act, that's a predicate act for a temporary restraining order." Plaintiff asserts that if the trial court's analysis is correct, then "the acts of harassment in the Prevention of Domestic Violence Statute would be rendered meaningless and no victim of harassment would ever be entitled to a restraining order." We disagree.

We agree with plaintiff, that Silver does not make violence or a threat of violence an indispensable requirement for the issuance of a restraining order. Rather, Silver sets forth a two-part analysis to guide the court in determining whether to issue a restraining order. Silver, supra, 387 N.J. Super. at 125. In the present case, the Family Part judge engaged in such an analysis and found that there was no "immediate danger to person or property." We acknowledge that we "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)); Cesare, supra, 154 N.J. at 411-12.

Our review of a lower court's factual findings is limited and is guided by well-established standards. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. Deference is particularly important where, as in the present case, "'the evidence is largely testimonial and involves questions of credibility.'" Cesare, supra, 154 N.J. at 401-02, (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Additionally, family courts have special expertise and "'grave responsibilities,'" given by the legislature, "'to ensure the safety and well-being of women and children . . . .'" Id. at 413 (quoting Brennan v. Orban, 145 N.J. 282, 304-05 (1996)).

Here, we defer to the trial court's delicate assessment that no immediate danger to person or property existed, and we are satisfied that the plaintiff failed to establish the second prong of the Silver test. Moreover, as the court emphasized, there was already a court order in place, restraining defendant from engaging in similar conduct in the future. No doubt the court also took into account the timing of the charges of domestic violence, fresh on the heels of, if not in the midst of the positioning of the parties for whatever advantage might be gained in the divorce proceedings. See, e.g., Corrente, supra, 281 N.J. Super. at 250 (noting the invocation of the domestic violence law may have caused potential unfair advantage for a matrimonial litigant).

Although the judge did not specifically state that he found harassment, we assume for purposes of this appeal that the elements of the criminal statute were met. Even so, the judge did conclude that the second prong of Silver was not satisfied. The judge also expressed his awareness that he had further opportunities to assess the alleged harassment in a future proceeding in connection to plaintiff's complaint for divorce and that defendant's violation of the civil restraints could be the subject of sanctions, without exposing plaintiff to undue danger.

Plaintiff further contends that "the trial court erred by failing to grant weight to the course of [defendant]'s prior conduct to determine if the appellant was entitled to a temporary restraining order." Plaintiff is correct in that "[a] complaint charging harassment in the domestic violence context . . . requires an evaluation of the plaintiff's circumstances." Cesare, supra, 154 N.J. at 404. Any prior history of domestic violence between the parties is one of the factors that a court must consider. N.J.S.A. 2C:25-29a. In this case, the Family Part judge was familiar with the parties' circumstances because he had heard, over a period of five days, testimony from plaintiff and her witnesses, which concluded nine days prior to the hearing relevant to this appeal. Notably, plaintiff dismissed her complaint before defendant had an opportunity to cross-examine her or to present any of his witnesses.

During the hearing of October 12, 2007, which led to this appeal, plaintiff's attorney stated, "I don't know if the Court finds it necessary for me to go into the history of domestic violence." The judge replied that normally the court will ask additional questions of the victim, but in this case, it was "not necessary under the circumstances." The judge noted that the parties, who were then before him on the domestic violence complaint, had been before him the day before on an application under their divorce action. While considering plaintiff's October 11 application, requesting modification of defendant's parenting time based on the same allegations asserted in the October 12 application, the judge had already found that "there was no immediate danger to person or property."

Moreover, the court stated that "the determination to deny the request for a TRO and dismiss this complaint was also based upon the testimony produced during the hearing on the request for a final restraining order pursuant to plaintiff's previous domestic violence complaint." Thus, while plaintiff contends that the court did not grant weight to defendant's prior conduct, it seems that what actually happened is that the court found it was not necessary for it to hear the history of this case again. It would undermine any notion of judicial economy if the judge had to hear once again the history of domestic violence that he heard during five days of testimony, the last day being nine days prior to the October 12 hearing.

We are satisfied that the court below properly considered the history and circumstances of this case in determining that a domestic violence restraining order was not necessary.

 
Affirmed.

"[A] person protected under this act . . . shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member." N.J.S.A. 2C:25-19d.

(continued)

(continued)

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A-1263-07T1

RECORD IMPOUNDED

July 22, 2009