C.C.P v. M.A.P

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1835-08T31835-08T3

C.C.P.,

Plaintiff-Respondent,

v.

M.A.P.,

Defendant-Appellant.

________________________________

 

Argued: November 12, 2009 - Decided:

Before Judges Payne, C.L. Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-416-08.

Laurence J. Cutler argued the cause for appellant (Fox Rothschild L.L.P., attorneys; Mr. Cutler, on the brief).

Hany Mawla argued the cause for respondent (Greenbaum, Rowe, Smith & Davis L.L.P., attorneys; Mark H. Sobel, of counsel and on the brief; Jeanette Russell, on the brief).

PER CURIAM

Defendant M.A.P. appeals from a final restraining order (FRO) entered on August 13, 2008, pursuant to the Prevention of Domestic Violence Act (PDVA or Act), N.J.S.A. 2C:25-17 to -35; a September 2, 2008, order awarding counsel fees to plaintiff C.C.P.; and a November 14, 2008, order reconsidering and reducing plaintiff's counsel-fee award. We affirm.

I.

The following facts are gleaned from the evidence presented at trial. Plaintiff and defendant were married for twelve years during which they had two children, a son and a daughter. Plaintiff filed for divorce in November 2007. Defendant physi cally and mentally abused plaintiff throughout the course of their marriage.

On June 28, 2008, plaintiff and defendant had an argument that led to defendant calling 9-1-1. The incident began with a dispute over who would spend time with the children on the upcoming weekend and occurred while the parties were still residing in the same home despite the pendency of the divorce.

Plaintiff was getting ready to leave the home to take the children to the beach when defendant threatened and pushed her. Plaintiff tried to call the police, but defendant pushed her away from the phone and, grabbing her, also pre vented her from going upstairs to the children. Defendant then called 9-1-1 while he restrained plaintiff until the police arrived.

When Officers Housman and Albani arrived at the parties' residence, defendant came outside with the telephone in his hand. Albani asked defendant if he was injured, and inspected him for any bruises or marks. Albani saw no signs of injury on defendant indicating that he had been hit or pushed.

Housman entered the residence to talk with plaintiff, and noticed that she was crying and had a visible injury on her wrist. Plaintiff told Housman she received the injury when defendant pushed and held her as she attempted to call 9-1-1. Housman stated that the injury was "at least two inches long and two inches wide," and that it looked as if plaintiff's wrist had been scraped along concrete. A photograph taken by plaintiff after the incident depicted an injury like that described by Housman; he confirmed that the photograph accurately depicted the injury he observed. Because plaintiff had an observable injury, Housman and Albani placed defendant under arrest.

Plaintiff gave a statement to the police, indicating:

[M.A.P.] and I got into an argument about weekend plans. He said he was taking kids all weekend and I told him we'd split it. He told me if I tried to take the kids to the beach Sunday, he'd call cops on me. I told him to stop threatening me. He was inches from me screaming at me and threaten ing me and then he shoved me twice. I ran away from him to get the phone and he shoved me out of the way, grabbed the phone and dialed 9-1-1. I tried to get by him to get to where the kids were upstairs and he shoved me again. In the course of the shov ing, I ended up with cuts to my wrist. He shoved/pushed me in the shoulders, chest and arms.

Plaintiff obtained a temporary restraining order (TRO) that day. She alleged in a complaint, which was obviously prepared by the police, that on June 28, 2008, at 10:40 a.m. the parties "engaged in a verbal argument over their children [and d]efendant proceeded to shove the victim twice when victim advised she was going to phone the police." She further alleged she received "an abrasion to her right wrist as a result of being forcefully pushed by the defendant." The complaint alleged that defendant "threatened to take the children away from the victim." As to the prior history of domestic violence, the complaint alleged: "Case 08-0755, Victim reported she was verbally harassed by defendant for several months after requesting a divorce."

On July 2, 2008, plaintiff argued her written motion for leave to amend her complaint to include additional prior acts of domestic violence dating back as far as 1998 and to adjourn the hearing to permit defendant an adequate time to prepare. Defendant opposed the application, arguing that he had been displaced from his house and was entitled to a hearing within ten days. Judge Ann R. Bartlett found good cause for the relief requested, permitted the amendment, and adjourned the case to July 10, 2008. On July 10, defendant sought an adjournment of the trial to obtain certain discovery, but his request was denied. The trial of this matter took place on July 10, 15, and 16, and August 11 and 13, 2008, before Judge Bartlett.

On July 10, defendant asked for a continuance so that he could have additional time for discovery and defense prepara tion. The judge denied his request because she had already granted an adjournment, and an FRO hearing should occur within ten days after the TRO is granted. On July 16, 2008, defendant moved for dismissal of the complaint based on his limited ability to obtain discovery.

Both parties testified to their versions of the events on June 28, as did Housman. As to prior acts of domestic violence, plaintiff first testified that she had a verbal fight with defendant in 1998, while pregnant, that "escalated to the point where he . . . had [her] pinned and [she] fell to the ground." She stated that she did not call the police or tell anyone about it because she did not want to anger defendant. Defendant tes tified that he had no recollection of the 1998 dispute and denied ever pushing her or holding her down in the way that plaintiff described.

Second, plaintiff testified that in January 2001, an argu ment took place in the car, during which she got angry and threw her cell phone at defendant. According to plaintiff, defendant responded by hitting her twice in the face with his right hand. A picture of plaintiff's face with a black eye that was taken four days after this incident was entered into evidence. Again, plaintiff testified that she did not talk to the police because she was afraid and was unsure how doing so would affect her children.

According to defendant, plaintiff threw the cell phone at his head and then wildly attacked him, and that eventually, "it finally just stopped." When asked if he hit her, defendant replied, "I don't know if I did or not because all I was trying to do was get her off of m[e] by moving my hands around." Defendant testified that he did not report the incident in the car to the police because plaintiff "begged [him] not to." He stated that when they got back to the house, "she started to apologize out the wazoo."

Third, plaintiff testified that another argument escalated over dinner plans for Thanksgiving 2004. Plaintiff stated that defendant, "pushed me into the laundry room and trapped me in there and he had me up against the wall . . . ." She testified that she was able to get away and then tried to call 9-1-1 before defendant grabbed the phone from her.

Defendant testified that he had no recollection of this happening. Defendant testified that he did recall the police showing up to the house in response to a 9-1-1 call, but when he asked plaintiff about it, she told him that the kids might have accidentally called.

Plaintiff testified about a fourth dispute that took place in April 2008 at her son's baseball game. Krista Foran also testified regarding this incident because, when the dispute occurred, she had been working at the baseball game "snack shack" with plaintiff. Foran stated that she and plaintiff were "just acquaintances. We see each other here and there at baseball games, not much else."

According to Foran, defendant came up to the snack shack and started yelling at plaintiff in a very hostile and bellig erent manner. Despite being afraid of defendant at that time, Foran stood in front of plaintiff and told him "this is not the time or the place for this" because "there's [sic] children around." Foran also told defendant she would call the director of the league, which she then did to ensure that the dispute would not reignite. A few days later, Foran sent an email to follow up with the director, as she was concerned because defen dant helped coach the team and her son would be spending time around him.

Defendant testified about the dispute at the baseball game, but denied raising his voice, using profanity, or attempting to intimidate or threaten anyone.

Finally, plaintiff testified about a dispute that occurred on May 2, 2008, when defendant tried to keep her from taking the children to school. Plaintiff went to the police to seek help and filled out a confidential victim information sheet. The sheet included a brief description of past disputes between defendant and plaintiff and described defendant's violent behavior.

Plaintiff explained that she wanted a restraining order because she was afraid of defendant, stating "he's hurt me in the past and he will hurt me again. It's been an escalation ever since I filed for divorce."

The judge barred defendant from calling Donna Roman, a police captain who knew defendant professionally and personally, as his character witness. Defendant's only other witness was his mother, E.P., who testified about the incident at the baseball game and seeing defendant injured after the car dispute.

II.

In placing her decision on the record on August 13, 2008, Judge Bartlett stated that she found Krista Foran to be the most credible witness because Foran was not particularly close to either defendant or plaintiff. In her determination on credi bility, the judge referred to Capell v. Capell, 358 N.J. Super. 107 (App. Div.), certif. denied, 177 N.J. 220 (2003), to support her consideration of the parties demeanor at the time of the incident. The judge found that at the time of the arrest, defendant was indignant because he was being arrested, not because of being injured or assaulted, while plaintiff had a visible injury and was observably shaken. The judge also con sidered the manner in which plaintiff described the events during defendant's 9-1-1 call and when the police arrived.

The judge considered the parties' testimony regarding the dispute in the car. She found plaintiff to be credible, in part because she admitted to throwing a cell phone at defendant. The judge found defendant's account of the event hard to believe because of how he described plaintiff's alleged attack. Fur thermore, the judge found defendant's credibility was hurt because his "anger and uncompromising attitude" was evident dur ing his testimony, and at times he appeared "imperious" and "aggressive." Also, regarding defendant's testimony relating to the car dispute, the judge found defendant interjected "inappro priate sarcasm" when he said, "Last I knew she couldn't force me to move." Overall, the judge found plaintiff more credible and truthful, noting that "[plaintiff's] tone, posture and eye contact were direct and forthright."

The judge found the dispute occurring on June 28 was part of a series of acts meant to intimidate plaintiff, and that such an act was harassment pursuant to N.J.S.A. 2C:33-4. The judge was not concerned that the police were unable to present a pho tograph of the injury, as both officers were able to describe the injury, and one officer was able to verify that the cell phone picture depicted the injury he had seen at the time of the arrest. The judge found that plaintiff had shown that the harassment occurred by a preponderance of the evidence.

The judge also found that assault, pursuant to N.J.S.A. 2C:12-1, was supported by a preponderance of the evidence. While the judge did not find that defendant intended to injure plaintiff, she did find that defendant acted recklessly when causing plaintiff's injury.

The judge, considering the testimony of plaintiff and Foran, found that plaintiff feared for her safety and well-being and issued an FRO. She noted that it would serve the purposes of the PDVA because it would prevent defendant's controlling and violent behavior. In entering the FRO, the judge barred defen dant from plaintiff's residence, her parents' residence, and her place of employment. The order also prohibited any oral, writ ten, or electronic form of contact with plaintiff, except for email and text messages regarding the children.

On August 13, 2008, the judge signed the FRO against defen dant. The order granted defendant parenting time every other weekend and every Wednesday for dinner. Also, the order included defendant's obligation to pay $720 a month in child support.

On August 29, 2008, the judge signed an order requiring defendant to pay plaintiff $14,693 in attorneys' fees, pursuant to N.J.S.A. 2C:25-29. In response, defendant filed a motion for reconsideration on September 22, 2008. On October 9, 2008, plaintiff opposed defendant's motion and filed a cross motion for attorneys' fees and costs related to defendant's motion. On November 14, 2008, Judge Bartlett signed an order reducing the amount of attorneys' fees to $12,831 and denying plaintiff's cross-motion for attorney's fees. Also, the judge amended the FRO to increase defendant's visitation time, allowing defendant to have the children from Tuesday evening through Wednesday evening. This appeal followed.

III.

First, defendant contends on appeal that the judge erred in finding that an act of domestic violence took place on June 28, 2008, and that an FRO was required to prevent future harm. Second, he urges that the judge erred in permitting plaintiff to amend her complaint to include additional prior acts of domestic violence. Third, he asserts that the judge committed several procedural and evidentiary errors that pre vented him from presenting a full and complete defense. Fourth, he alleges that the judge erred in awarding attorneys' fees to plaintiff. Finally, defendant argues that there are constitu tional due process and confrontation clause violations embedded in the PVDA.

Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Supreme Court has observed that matrimonial courts possess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in fam ily matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclu sions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not "second-guess [a Family Part judge's factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Of course, we employ a de novo review when assessing a 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).

Trial courts that "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

When reviewing a Family Part judge's findings of fact respecting conflicting testimony, we will

generally "defer to the factual findings of the trial court because it has the opportu nity to make first-hand credibility judg ments 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. E.P., 196 N.J. 88, 104 (2008) (quoting [N.J. Div. of Youth & Family Servs.] v. M.M., 189 N.J. 261, 293 (2007)). Moreover, we recognize that "[b]ecause of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfind ing." Cesare[, supra,] 154 N.J. [at] 413 . . . .

[N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).]

"Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the impli cations to be drawn therefrom,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this latter instance, 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).

IV.

A.

First, defendant contends the trial judge erred in finding he had committed acts of harassment and assault against plain tiff. Defendant asserts that there was insufficient evidence to support a finding of either predicate act. He also contends the judge prejudiced his ability to defend against these claims when she concluded that the deletion of the police photograph did not prejudice his defense. Defendant urges that the judge's find ings were incorrect because she failed to consider his testimony relating to the dispute, relied on gender-biased presumptions, and improperly considered the alleged prior instances of domestic violence.

When determining whether to grant an FRO pursuant to the PDVA, the judge must apply the two-prong test set forth in Sil ver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "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:25-19(a) has occurred." Id. 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 [(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 con sider 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.]

N.J.S.A. 2C:25-29a provides that "the standard for prov ing the allegations in the complaint shall be by a preponderance of the evidence."

The judge found that defendant had committed harassment, pursuant to subsection (b) of N.J.S.A. 2C:33-4, which provides:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

. . . .

b. Subjects another to striking, kick ing, shoving, or other offensive touching, or threatens to do so[.]

"A complaint charging harassment in the domestic violence con text" requires that a court "consider the totality of the cir cumstances to determine whether the harassment statute has been violated," including "an evaluation of the plaintiff's circum stances." Cesare, supra, 154 N.J. at 404 (citing State v. Hoff man, 149 N.J. 564, 584-85 (1997)). "A finding of a purpose to harass may be inferred from the evidence presented" and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577 (citations omitted).

The judge found that the purpose to harass was evident from past acts of violence:

The court finds that [defendant's] purpose here was to intimidate the plaintiff to keep her from getting the children and to keep her from taking the children to her mother's . . . . And this is a tactic that had worked in the past. It worked in 1998 when he shoved her into a corner. It worked in 2004 when he shoved her into the laundry room and blocked her in. And the court finds that this purpose of intimidation is just another word for alarm. Harassment under our case law has been defined as to annoy or alarm.

Her findings were based on the credibility of the parties, which she determined by listening to the 9-1-1 call and the testimony of plaintiff, defendant, the officers and Foran. In contrast to the rest of the witnesses, the judge found that defendant's tes timony was at times "incredible," included sarcasm, and that his 9-1-1 call during the dispute contained an exaggerated descrip tion of the events taking place. We defer to these credibility determinations. G.M., supra, 198 N.J. at 396.

We find no error in the judge's conclusion that defendant's conduct constituted harassment. Franklin v. Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006) and J.N.S. v. D.B.S., 302 N.J. Super. 525, 531 (App. Div. 1997) are not dispositive. This was not mere domestic contretemps. As the judge found, there had been previous instances of intimidation and violence from which it was entirely proper to infer a purpose to harass.

Defendant also contends that the judge erred in concluding that he had committed an assault. N.J.S.A. 2C:12-1a defines assault as "purposely, knowingly or recklessly caus[ing] bodily injury to another." The judge found that plaintiff's injury resulted from the physical confrontation. While the judge found that defendant did not purposely or knowingly injure plaintiff, she found that he caused plaintiff's injury in a reckless man ner. This finding was based on the same evidence used to sup port the finding of harassment. Furthermore, it is supported by substantial, credible evidence in the record.

Defendant also contends that the police intentionally destroyed evidence and the trial judge erred by not finding such destruction to have prejudiced his defense. At the hearing, Housman testified that the photograph was erased because it did not show the injury. That testimony eliminated any prejudice defendant might have suffered. In any event, any dereliction on the part of Housman is not attributable to plaintiff and cannot defeat her right to the protections of the PDVA.

Defendant also contends that the trial judge relied on gen der-biased presumptions when making determinations of fact and credibility. He further alleges that the investigating officer and the TRO judge both operated under gender bias. Specifi cally, defendant points to the judge considering his height and weight as compared to the height and weight of plaintiff. We find no merit to these claims and affirm the judge's determina tion that defendant committed an act of harassment and assault.

B.

Defendant next contends that the judge improperly found that an FRO was necessary and justified here because plaintiff was afraid of him. He alleges that plaintiff could not have been in fear of him because she physically engaged him during the dispute, as she admitted that she was trying to get around him during the dispute. He also asserts that her lack of fear is evident because she continued to interact with him socially after filing for divorce and did not include an extreme cruelty count in her complaint. He points out that she also failed to pursue an FRO previously, despite having numerous opportunities to seek one.

After the plaintiff establishes a predicate act by a pre ponderance 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:25-29(a)(1) to -29(a)(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 PDVA provides:

The court shall consider but not be limited to the following factors:

(1) The previous history of domestic vio lence 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.]

Here, the judge considered the injury that occurred during the parties' dispute and the former instances of abuse when determining whether an FRO would be necessary to protect plain tiff and serve the purposes of the PDVA. "The issuance of a final domestic violence restraining order 'has serious conse quences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as "a serious crime against society."'" Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004) (quoting N.J.S.A. 2C:25-18)).

Nonetheless, given the judge's credibility findings, and the testimony regarding the parties' history of disputes, par ticularly the two most recent events taking place in April and June 2008, we are satisfied that the judge correctly found that granting an FRO was appropriate in this matter.

V.

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the remaining issues presented by defendant are without sufficient merit to warrant extensive discussion in this opin ion, Rule 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on August 13, 2009. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms, supra, 65 N.J. at 483-84.

However, we add the following comments: We find defen dant's claim that a one-year statute of limitations, incorpo rated in the PDVA, should bar evidence of prior acts of domestic violence occurring more than one year prior to the filing of the complaint to be utterly lacking in merit. Those instances of domestic violence were not the underlying acts leading to the TRO, and therefore, were not subject to the statute of limitations or the defense of laches.

Defendant's claim that he did not have an adequate amount of time to investigate the charges has no merit because he had the six weeks between the TRO and the FRO to obtain whatever evidence he believed relevant.

We also find no mistaken exercise of discretion in the judge's determination to award counsel fees to defendant, even though such fees are not mandatory. McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007).

Finally, defendant's contention that the PDVA violates his constitutional rights because the standard of proof is by a pre ponderance of the evidence and not by clear and convincing evi dence has twice previously been resolved by us and does not merit reexamination. Crespo v. Crespo, 408 N.J. Super. 25, 40 (App. Div. 2009) (quoting Roe v. Roe, 253 N.J. Super. 418, 428 (App. Div. 1992)).

Affirmed.

Housman testified at trial that he also took a photograph of plaintiff's injury on the day of the dispute, but the photograph was deleted because the injury could not be seen. He attributed this to the poor quality of the camera.

Defendant also wanted a TRO, alleging that plaintiff assaulted him by pushing and striking him several times, but his complaint in the record on appeal was not signed by him and the TRO was not granted.

This notice of motion and the supporting certifications were not included in the record on appeal.

(continued)

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A-1835-08T3

RECORD IMPOUNDED

March 2, 2010