D.L v. C.L

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0072-09T20072-09T2

D.L.,

Plaintiff-Respondent,

v.

C.L.,

Defendant-Appellant.

________________________________

 

Submitted June 9, 2010 - Decided

Before Judges Cuff and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-150-10.

Jack Venturi & Associates, attorneys for appellant (Jennifer L. Marshall, on the brief).

D.L., respondent pro se.

PER CURIAM

Defendant appeals from a final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Defendant contends he was pressured to proceed without an attorney and that an FRO was not necessary. We affirm.

Plaintiff, D.L., and defendant, C.L., married on October 11, 2002. At the time of the FRO proceeding, they had two children, ages three and four. The events that lead to the FRO occurred from April to July 2009. During those three months, repeated incidents occurred that caused plaintiff to fear that defendant would harm her.

On April 24, 2009, defendant called plaintiff at work, accused her of cheating on him, and said he was going to her place of employment to kill her. Plaintiff believed him and feared for her life. To avoid embarrassment at work, she decided to leave the building, wait in her car, and leave when he arrived. She reasoned she could avoid a scene at work.

When defendant arrived, his truck blocked her car, so it was difficult for her to leave as planned. Defendant got out of his truck, walked to her car, opened her door, and punched plaintiff in the eye, ear, and throat. During the struggle, defendant ripped plaintiff's sweater.

Plaintiff turned off her car, grabbed her purse, and entered defendant's truck. While crying in the truck, she turned around and saw her four-year-old sitting in the back seat. In front of the child, defendant yelled obscenities at plaintiff, and "slapped [her] so hard [her] head hit the window and [her child] start[ed] crying." Plaintiff feared for her safety and for the safety of her child. She went to the hospital that day and learned that her eardrum was ruptured. She could not hear out of her left ear for three weeks.

Defendant apologized to plaintiff and said that he loved her. Instead of immediately obtaining a restraining order, plaintiff consulted a domestic violence counselor because she was confused.

One week later, defendant grabbed plaintiff by the back of her neck, forced her to sit up in bed, and called her "a whore." He "grabbed the pillow and[,] with all his force with one hand, he just hit [plaintiff] right in the same side of [her] face that [her] ear drum had busted."

Two weeks later, defendant required plaintiff to constantly send pictures of her whereabouts so he could follow her movement. She was afraid, sent a picture standing outside Chili's restaurant to him, and then sent more pictures throughout the night. When she returned home, defendant continued to accuse her of cheating. Defendant called plaintiff "a liar" as she was putting their four-year-old to bed.

That night, when plaintiff told defendant that they had to get a divorce, defendant grabbed her by her arms, she tripped, and he threw her on the bed. The next day defendant left their home. He agreed not to be in the home.

Thereafter, defendant continued to communicate with plaintiff. Although his threats did not cease, he relocated to Texas for two weeks "to give [plaintiff] some space." He told her that if she lived in Texas, he would kill her.

When he returned to New Jersey, defendant accused plaintiff of having an affair. On July 13, 2009, the parties argued at their home about their marriage. Defendant expressed his desire to stay married; plaintiff told defendant that she was afraid of him due to his past history of violence. Defendant said, "[W]hat are you going to do[? A]re you calling the police[?] I don't care[. No one] can stop me. It's my house[. Y]ou are my wife[,] and I should know where you are at all times. I am videotaping the house[.] I know all you do." Plaintiff shook with fear. After the argument, defendant said, "I'll be back." "[Defendant] mentioned how he could come back in the middle of the night . . . ."

On July 14, 2009, plaintiff obtained a temporary restraining order (TRO). In her complaint, plaintiff alleged that defendant was guilty of assault, in violation of N.J.S.A. 2C:12-1; harassment, in violation of N.J.S.A. 2C:33-4; stalking, in violation of N.J.S.A. 2C:12-10; and terroristic threats, in violation of N.J.S.A. 2C:12-3.

Judge Toto conducted a thorough FRO hearing on July 21, 2009. Plaintiff, her sister, and defendant testified. Judge Toto found that plaintiff was credible.

Further, the judge determined that defendant assaulted plaintiff on April 24, 2009, and ripped her sweater as he pulled her from her car. Indeed, at trial, defendant did not deny that he struck plaintiff while their child was in the back seat of the truck. Finding that defendant injured plaintiff on April 24, the judge accepted plaintiff's statement that she was afraid.

Judge Toto concluded that defendant assaulted plaintiff in May 2009, when he pulled her neck, grabbed her arms, and pushed her, causing her to trip. Defendant told plaintiff that if plaintiff followed him to Texas, he would kill her.

Judge Toto listened to a June 26, 2009, taped conversation between the parties. Defendant admitted telling their four-year-old that "mommy [did] something bad and she deserves to be punished." The judge remarked that defendant sounded upset in that conversation.

On July 13, 2009, defendant would not leave the house, despite his earlier agreement in mid-May or June not to be there. Plaintiff was in fear on July 13, 2009.

On July 30, 2009, Judge Toto placed his decision on the record. He concluded that plaintiff proved the elements of assault and harassment and that an FRO was necessary to prevent further abuse. He determined that the July 13, 2009, incident was part of a pattern of incidents from April through July necessitating issuance of a FRO.

On appeal, defendant raises the following points:

POINT ONE:

DEFENDANT WAS DENIED DUE PROCESS BY BEING PRESSURED BY COUNSEL TO NOT SEEK AN ATTORNEY AND NOT TO PRESENT WITNESSES

POINT TWO:

THE TRIAL COURT'S RULING SHOULD BE OVERTURNED BECAUSE THERE WAS NO NEED TO ISSUE A FINAL RESTRAINING ORDER.

Our review of the Family Part's fact-finding function is

restricted so 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); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div.

2010). Reviewing courts are to generally "'defer to the factual

findings of the trial court because it has the opportunity to

make first-hand credibility judgments about the witnesses who

appear on the stand; it has a "feel of the case" that can never

be realized by a review of the cold record.'" N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008)).

Family courts are accorded additional deference for their

fact-finding because of their special expertise in such matters.

Ibid. Conversely, "'where the focus of the dispute is . . .

alleged error in the trial judge's evaluation of the underlying

facts and the implications to be drawn therefrom, the

traditional scope of review is expanded.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). Even then, however, "we will nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting M.M., supra, 189 N.J. at 279).

We will "not second-guess [Family Part judges' factual]

findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citing Cesare, supra, 154 N.J. at 413). We exercise de novo review when we are called upon to appraise a trial judge's interpretation of law. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

When determining whether to grant an FRO pursuant to the

the Act, the judge must apply the dual-element test set forth in

Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). See also Cesare, supra, 154 N.J. at 402-05. "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." Silver, supra, 387 N.J. Super. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

In performing that function, "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, supra, 154

N.J. at 402 (quoting Peranio [v. Peranio],

280 N.J. Super. [47,] 54 [(App. Div. 1995)]). Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, 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. See N.J.S.A. 2C:25-29a(1) and (2).

[Id. at 125-26 (emphasis omitted).]

It is well-established that commission of one of the

predicate acts of domestic violence set forth in N.J.S.A. 2C:25-

19 does not, on its own, "automatically . . . warrant the

issuance of a domestic violence [restraining] order." Corrente

v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio, supra, 280 N.J. Super. at 54. The determination whether such an order should be issued must be made "in light of the previous history of 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." Corrente, supra, 281 N.J. Super. at 248 (citing N.J.S.A. 2C:25-29a(1) and (2)); Peranio, supra, 280 N.J. Super. at 54.

N.J.S.A. 2C:25-29a provides that "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." See also Crespo v. Crespo, 201 N.J. 207, 209 (2010) (holding that the Act is constitutional and "'the preponderance standard, as applied in domestic violence matters, conforms with the requirements of due process[.]'" (quoting Crespo v. Crespo, 408 N.J. Super. 25, 37 (App. Div. 2009)).

After a plaintiff establishes the necessary predicate act

of domestic violence by a preponderance of the evidence, the

second inquiry is to determine whether a restraining order

should be issued. Silver, supra, 387 N.J. Super. at 127.

Although this determination "is most often perfunctory and self- evident, 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." Ibid. (citing

N.J.S.A. 2C:25-29b). In this respect, the Act provides:

The court shall consider but not be limited

to the following factors:

(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.]

Defendant suggests that because he and plaintiff interacted from April to July 2009, she was not afraid of him. Specifically, he contends that she accepted gifts from him and that they slept in the same bed. In fact, Judge Toto recognized that plaintiff was sending mixed messages. However, he found that plaintiff proved the elements of assault and harassment, and an FRO was necessary to prevent further abuse. He said:

The . . . current incidents of June and July . . . in light of the totality of the circumstances, and the incident[s] of April and May[,] the [c]ourt finds that the acts occurred to warrant a final restraining order, and find[s] that the order is necessary to prevent further abuse.

An FRO shall issue "to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127. "[T]he court shall grant any relief necessary to prevent further abuse." N.J.S.A. 2C:25-29b. After finding the predicate acts of assault and harassment, Judge Toto issued the FRO "to prevent further abuse." He specifically found that plaintiff was in fear in July. He said:

I do find that the plaintiff was in fear at that time in July, that this was a conversation where the defendant had accused the plaintiff of another affair . . . . He said that he did not care if she called the police, he was not afraid of her, and when examined in light of the April incidents and the incidents thereafter, it is reasonable to conclude that the plaintiff . . . [felt] threatened by the defendant.

Judge Toto's analysis of the need for an FRO included the April and May assaults and the harassment that occurred from April to July. He found plaintiff feared defendant and that defendant's prior actions formed a factual basis for that fear. Our review of the record demonstrates these findings and the relief fashioned are well supported by the record.

Defendant argues that he was pressured to proceed at the FRO hearing without an attorney. We disagree.

At the FRO hearing, Judge Toto told defendant that he had the right to be represented by an attorney. He explained to defendant that after the hearing, he would either deny the request for an FRO, or the TRO would become permanent. The judge told defendant that if defendant violated an FRO, he would be arrested and brought to jail. Then Judge Toto said:

In addition, if you proceed today, I'm going to assume that you have all your evidence that you want the [c]ourt to see, documents, pictures, whatever it may be, and all your witnesses are here to testify. If you would like an adjournment to speak to an attorney I'll consider granting that and have you come back in a week or two and reschedule the matter. If you proceed without one[,] then you do so with the risk and consequences as I've explained.

Defendant said that he wanted an adjournment, because he "didn't know [he] was allowed to bring witnesses." At that point, plaintiff's counsel objected and requested fees. Judge Toto told defendant, "Sir[,] I would think you want at least two weeks in order to speak to an attorney." Defendant explained that he didn't know that he needed an attorney. In response, the judge said, "I'm going to give you the right to speak to an attorney . . . . You've made a request for one[,] and I'm going to grant that request because I think it's important that both parties have the opportunity to consult with an attorney." The judge explained to defendant that just because plaintiff's counsel requested fees, "doesn't mean that it's going to be granted."

Judge Toto then said, "So I would imagine that you're going to want at least a week or two weeks to give you time to speak to an attorney." Defendant said, "I'll go through with it today, that's fine." Despite defendant's desire to proceed, Judge Toto said:

I'm going to grant your request to speak to an attorney. Don't let the issue of fees be the only concern. Nobody's telling you today that you have to pay those fees. That's a right [plaintiff's attorney] has. Just like you have a right to speak to an attorney, he has a right to make a request for fees. That's for another day and another issue for the [c]ourt to address.

Judge Toto repeated that defendant had the right to speak to an attorney. Defendant then said, "I couldn't afford one even if I did speak to one." The judge suggested defendant contact legal aid, but defendant said he tried that unsuccessfully. The following exchange occurred between defendant and Judge Toto:

Court: So what are you asking the court to do?

Defendant: We might as well just go through with what I have today[,] and I'll try to defend myself, sir.

Court: And you understand that at the end of the day[,] a final restraining order may be issued against you[?]

Defendant: Yes[,] sir.

Court: And if you violate that[,] you're going to go to jail[?]

Defendant: Yes[,] sir.

Court: And you want to proceed on your own?

Defendant: Yes[,] sir.

Right after defendant was sworn in, the following exchange occurred:

Court: [C.L.], if we start this trial[,] I most likely will not grant a request after we start it for you to seek an attorney. So I'm going to give you one more chance, knowing the consequences and knowing that you said you may have some witnesses to call[. D]o you still want to proceed today without your witnesses with the understanding that at the end of the day, at the end of this trial, that a restraining order may be entered against you permanently?

Defendant: Yes[,] sir.

Court: So you have no witnesses today?

Defendant: I have my sister-in-law[. What] she knows [is] limited. My mother would be the better witness, but regardless it's hearsay. . . .

Court: Okay. So . . . you're not going to call your mother as a witness?

Defendant: No.

. . . .

Court: Sir[,] you'll have a chance to ask questions of [plaintiff] and her witnesses, when they're done testifying[. T]hen you'll have a right to testify as well. And you'll be subject to cross examination as well. Do you have any questions before we begin?

Defendant: No[,] sir.

Defendant was given numerous opportunities to adjourn the trial for at least two weeks, but he refused. Defendant admitted that he had previously contacted legal aid despite previously saying that he "didn't know that [he] needed an attorney . . . ." We conclude that defendant was not pressured to proceed at the FRO hearing without an attorney.

 
Affirmed.

(continued)

(continued)

15

A-0072-09T2

RECORD IMPOUNDED

July 30, 2010