M.L. v. N.W.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1852-08T3

M.L.,

Plaintiff-Respondent/

Cross-Appellant,

v.

N.W.,

Defendant-Appellant/

Cross-Respondent.

_____________________________

Argued June 1, 2010 - Decided June 30, 2010

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FV-02-773-09-J and FV-02-774-09-J.

Jonathan D. Gordon argued the cause for appellant/cross-respondent (The Law Offices of Jonathan D. Gordon, L.L.C., attorneys; Mr. Gordon and Jennifer M. Cornelius, on the brief).

Toni Ann Russo argued the cause for respondent/cross-appellant.

PER CURIAM

N.W. appeals from a November 12, 2008 final restraining order (FRO) entered against her in favor of her former spouse, M.L. In turn, M.L. cross-appeals from a FRO issued on the same day against him in favor of N.W. We affirm the issuance of both FRO's, but remand to the trial court to clarify one provision of the FRO entered against M.L.

I

The appeals can be summarized as follows. The dual FROs arose from an incident that occurred on September 21, 2008, as M.L. was dropping off the parties' children after his parenting time. He alleged that in violation of the curbside drop-off provision of the marital settlement agreement, N.W. angrily approached his moving vehicle and lunged at him from the passenger side window. In self-defense, he rolled up the electronic window which closed on her arm. By contrast, N.W. alleged that as she had done on numerous occasions, she exited her home and met M.L. at the curb. She testified that she calmly put her hand through the front passenger side window to grab the children's overnight bag and M.L. crushed her arm by rolling up the window.

After considering extensive testimony concerning this incident as well as the parties' protracted history of domestic violence, the trial court concluded that neither party's testimony about the predicate offense was entirely credible. The judge held that both parties committed an act of assault and harassment against each other on the day in question and that due to their long history of violence against each other, a FRO was necessary "to protect [N.W. and M.L.] from an immediate danger or to prevent further abuse." (quoting Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).)

On this appeal, N.W. contends that the judge's decision against her is contrary to the weight of the evidence; the trial court's credibility findings are erroneous; the trial court erred in admitting in evidence an audio recording created by M.L., and the court erred in refusing N.W.'s application to present psychiatric testimony to explain statements made on the recording; the court abused its discretion in refusing to allow the parties' children to testify; and the court erred in allowing opposing counsel to interview a proposed witness ex parte.

On his cross-appeal, M.L. also argues that the FRO against him was issued against the weight of the evidence; the court's credibility determinations are erroneous; and the court erred in including in the FRO a prohibition against visiting the children's school, when the court's oral opinion stated otherwise.

Having reviewed the record, we conclude that the court's decision is supported by sufficient credible evidence in the record. However, because one portion of the FRO concerning M.L. appears to be inconsistent with the court's oral opinion, we remand for clarification as to whether M.L. is permitted to visit the children's school.

II

This is the most pertinent testimony presented at the FRO hearing. The parties were married on January 31, 2000, and had two daughters and a son. The parties were divorced in 2008. As part of their marital settlement agreement, N.W. received primary physical custody of the children. The settlement agreement provided that "[t]he party who is exercising parenting time shall be solely responsible to pick up and drop off the children curbside at [her] residence."

On the weekend of September 19, 2008, M.L. had parenting time with the children. Shortly before his scheduled visitation, he contacted N.W. to inform her that he wanted to take the children out of town to visit his parents in Watertown, New York. After consulting with her attorney, she consented to the trip because it was M.L.'s birthday weekend.

N.W. testified that on the day in question, M.L. was supposed to return the children to her home at 6:30 p.m. When she called her son at 6:40 p.m., he answered his cell phone whispering, which caused her to worry. She testified that she heard M.L. yelling in the background, "tell her we're on Prospect Ave." The parties' son reassured his mother that he was fine and ended the conversation. N.W. called once more and was reassured that they were on their way.

Shortly thereafter, M.L. drove his Jeep Cherokee vehicle into N.W.'s driveway and backed out to park alongside the curb. N.W., who is a registered nurse, was taking care of a young special needs patient in her home. N.W. testified that she exited her home to meet the children. N.W. explained that her understanding of the curbside pick up and drop off provision of the settlement agreement was that it prohibited M.L. from exiting his vehicle, but imposed no restraints on her. She testified that on numerous occasions M.L. had parked in the driveway or she had gone outside to meet the children.

N.W. testified that she noticed that all of the car windows were down and that the children's weekend bag was "almost out the door." The bag was in the front passenger seat. She claims that she approached the vehicle with a calm demeanor and told M.L. to "just stay there, I'll grab . . . the bag." M.L. did not reply. She reached in the vehicle with her right arm to grab the duffle bag and the sweatshirts underneath without touching the vehicle. M.L. responded, "no" and "f**k you." N.W. testified that M.L. closed the car window on her arm, crushing the area between the armpit and the elbow. N.W. alleged that she temporarily struggled to remove her arm from the window and M.L. eventually opened the window slightly, allowing her to move her arm. N.W. testified that the daughters ran inside the house and the son remained outside with her. M.L. exited the vehicle and "put both hands up and said what . . . I was just trying to shut the window."

M.L. presented a significantly different version of the encounter. He testified that N.W. was upset that he had taken the children to Watertown. M.L. alleged that en route to N.W.'s residence, the son handed him his cellular phone, through which N.W. yelled at him for being late and threatened that "a judge is going to hear this." When he pulled into N.W.'s driveway, he could overhear her voice both outside the car and through the son's cell phone. She "came busting out through the door and just ripping into me, screaming, you know, not a nice word." He testified that when he backed the car up and started to pull up to the curb,

she was through the window, grabbed the duffel bag, and she's screaming at me. And I'm just shaking now. . . . I didn't even have the car in park yet, but I got the windows and I just got the two front windows going up and I knew she was coming, but I figured I got the window up. But she didn't care, she reached right through and just got a hold of my arm for a second, but the second that she got a hold of my arm the window got her. And she had to let go. And I put the window down, she pulled her hand out, and I put the windows right back up.

On cross-examination, M.L. explained that N.W. grabbed the children's bag out of the car while the car was still in motion. He testified that she stuck her hand in the window a second time while he was closing the window. He then lowered the window just enough to allow N.W. to remove her arm. M.L. testified that N.W. walked towards the house screaming you "son of a bitch," as he assisted his son out of the car and reached for the youngest child. Because N.W. was walking back toward the car, M.L. left one of the children on the curb and drove away.

M.L. testified that he was not attempting to hurt N.W., instead he was trying protect himself because she had physically attacked him in the past. He testified that it was unusual for N.W. to be outside of the home for pick ups and drop offs. In fact, he alleged that he had not seen N.W. for approximately three months. He maintained that when he dropped the children off at their home, he would assist them out of the car, walk them to the door, and return to his car. M.L. testified that the parameters of curbside pick up had been explained to N.W. twice by Judges Torack and Langan.

In addition to their accounts of what transpired on September 21, 2008, both parties provided a detailed account of previous incidents of domestic violence. M.L. testified that in 1999, he and N.W. visited his parents to announce their engagement. N.W. became upset over a comment that his mother made about the quality of her engagement ring. He contended that shortly thereafter, during a car ride to visit his extended family, N.W. grabbed his arm and scratched him, causing him to bleed on his white t-shirt. M.L. alleged that they cancelled the trip because his shirt was stained with blood. M.L. testified that on their way home from another trip, N.W. started to hit him and he tried to "block her blow and [ ] pound[ed] her right in the face," breaking her nose.

On October 26, 1999, N.W. obtained a TRO against M.L. She alleged that when she questioned him about why he was home late he punched her in the mouth, splitting her lip. According to M.L., N.W. was upset that he was coming home late, and she hit him with the car keys and a screwdriver. He alleged that he ran into the bedroom and shut the door behind him and in doing so, it "scraped her right off my back" and split her lip. He testified that he tried to defuse the situation by lying down in the bedroom, but N.W. threw a glass ashtray at him, barely missing his head. M.L. called the police, but he alleged that because N.W. was more articulate than he was, she convinced the police that he was the aggressor and he was arrested. Two days later, M.L. was granted a TRO against N.W. She dismissed her TRO against M.L. on October 29, 1999.

M.L. testified that during the summer of 2000, N.W. entered their home and, without provocation, damaged his drums and threw his keyboard at him. He testified that he ran to the bedroom and she followed him with a bottle of Tide and poured it over him. M.L. alleged that when the police arrived, N.W., who was pregnant with their first child, had blood running down her forehead. M.L. was arrested. However, N.W. later dropped the charges against him.

N.W. alleged that sometime later in 2000 when she was nine months pregnant, an incident occurred in which M.L. pulled her hair and punched her in the face and stomach. N.W. testified that she sought care in the emergency room and had to be monitored for an extended period.

N.W. testified that in 2004 or 2005, she was a passenger in a car driven by M.L. and an argument arose between them about M.L.'s alleged child from a previous relationship. She testified that M.L. "bashed her in the face with his elbow" causing a broken nose, for which she sought medical treatment.

N.W. testified that the next incident of domestic violence occurred in March 2006. At that time, she was pregnant and experiencing morning sickness. N.W. testified that knowing that one of the triggers of her morning sickness was the smell of coffee, M.L. made a cup of coffee in her presence. When she asked him not to do so, he responded "this is my house, I pay the bills." As she went to turn off the coffee pot, M.L. was yelling at her because she had asked him to leave the home. N.W. testified that when her back was turned to M.L., he threw hot coffee on her. He also threw the coffee mug at her left posterior shoulder. N.W. obtained a FRO shortly thereafter. She testified that she eventually dismissed the FRO because she was pregnant and M.L. was attempting to reconcile with her.

In complete contradiction to N.W.'s testimony, M.L. alleged that while he had a cup of hot coffee in his hand, N.W. stood behind him and hit him in the back of his head. This caused the coffee to spill on both N.W. and him. He testified that he placed the coffee cup in the sink and gathered his belongings to leave the house. In the children's presence, N.W. was yelling and telling them that he was a "bum." He testified that as he was trying to leave the house, she ran towards him with a bottle of household cleaner and tried to spray him in the eyes. M.L. filed a police report of the incident, but he did not apply for a TRO because N.W. was pregnant. However, when the police discussed the incident with N.W., she applied for a TRO and M.L. was removed from the home. A FRO was issued, which N.W. later dismissed.

M.L. testified that he contacted the Division of Youth and Family Services as a result of the coffee incident. M.L. alleged that N.W. told the Division that he was an alcoholic, a drug addict and was violent towards his family. His visitation rights were suspended for approximately one year. M.L. was ordered to have supervised visitation with his children in early Spring 2007 until he completed a series of evaluations. He underwent a substance abuse evaluation and tested negative for illegal substances on numerous occasions. M.L. further testified that his position as an iron worker requires random drug tests and his employer has a zero tolerance drug policy.

Describing yet another incident, N.W. alleged that on Good Friday in 2006, M.L. came home from work inebriated. At that time, she was approximately five months pregnant. N.W. testified that M.L. cracked a bedroom window while trying to undress himself. He eventually came downstairs and went outside to the back porch. N.W. testified that while she was standing on the opposite side of the screen door, M.L. was screaming at her. He then "smashed the door" in her face, causing her to fall backwards and hit her head against a wall. N.W. testified that she passed out for several seconds and when she awoke, M.L. was standing over her apologizing. She obtained a TRO and M.L. was arrested.

M.L. disputed N.W.'s recollection of the Good Friday incident. He testified that he came home from work ill from food poisoning and threw up in his duffel bag. He testified that when he went upstairs to take a shower, N.W. pushed his upper body and he smashed into the venetian blinds and the glass window in the bathroom. He testified that after he got out of the shower, N.W. took his clothes and threw them outside on the lawn. He alleged that he went outside to retrieve his clothes and tried to pack a bag to leave the home, but N.W. kept taking things out of the bag and throwing them outside in the yard. He claimed that she took a dining chair and broke it over his back. He lost his balance and fell through the china closet window.

M.L. testified that he was able to exit the home, but he realized that he was missing his cell phone charger and tried to reenter. He alleged that he used his "heel and just jammed right back on the door and opened it up." M.L. testified that when he opened the door, it accidentally hit N.W., knocking her into a heap of laundry. M.L. was arrested, but N.W. eventually dismissed the charges against him.

According to N.W., the next domestic violence incident occurred on Easter Sunday in 2007. The children were downstairs opening their Easter presents and M.L. came downstairs and rifled through the gifts. N.W. testified that she felt as though M.L. was ruining the jovial mood, so she told him to "just leave us be." M.L. then picked up a book that had been given to the son as a gift and "whipped it" almost hitting the youngest child. N.W. testified that she told him to leave the house. Instead M.L. grabbed a broom and used it to hit N.W. on the back of her leg. N.W. testified that M.L. then fled the home to the neighbor's house across the street.

M.L. testified that an incident of domestic violence was perpetrated against him on April 30, 2007. He stayed home from work that day because he had a "fishpool shaped scratch" on the side of his face, which N.W. had inflicted. He told N.W. that he would take their son to school and she responded, "you're not taking these children anywhere." He testified that while the children were sitting at the breakfast table, N.W. began making insulting remarks about his parents. M.L. testified that after he returned from brushing his teeth, she told him to leave the house. He exited through the back door. He testified that he thought that she had walked away from the door but when he tried to reenter she was standing by the door and stabbed him with a fountain pen across the bridge of his nose and into his left eye. M.L. testified that he sought medical treatment and obtained a TRO in Bergen County. Because the parties were going through a divorce, they agreed to civil restraints instead. N.W. testified that it was M.L.'s habit to call the police whenever there was an incident of domestic violence, although he was always the aggressor.

Over N.W.'s objection, an audio recording was admitted in evidence after a Driver hearing. M.L. testified that the recording captured several interactions between him and N.W. during the summer of 2006. He testified that he made the recordings with a pocket tape recorder. He then had the tape converted to a compact disc. He alleged that he was prompted to make the recording because law enforcement authorities never seemed to believe his version of events. He testified that he did not delete any space between recordings, and the recording was completely unedited.

The court found that the recording was relevant because it would provide evidence of statements which would constitute harassment, and would support M.L.'s testimony of statements that were made to him. The court found that the recording would not create an undue delay or be cumulative. The court further credited M.L.'s testimony that he turned the recording off and on, but the recording was an accurate reflection of what occurred. There was no dispute that N.W. and M.L. were the persons whose conversations were recorded. The trial court ordered M.L. to play only the relevant portions of the tape.

N.W. did not deny making the statements on the tape. However, she testified that M.L. would make certain comments for the purposes of recording them, but they were not an accurate reflection of what was occurring. For example, she claimed his comments such as "don't hit me" were made when there was no threat of anyone hitting him. After the tape was played, N.W. sought to present testimony from a psychiatrist who had listened to the tape and evaluated her. The trial judge denied N.W.'s request noting that she had ordered discovery to be completed two weeks earlier; N.W. had ample notice of the existence of the tape; and the psychiatrist was not on her witness list.

In an oral decision issued on November 12, 2008, the court found that both parties committed acts of harassment and assault on September 21, 2008. Based on her evaluation of the parties' credibility, the judge specifically found that they had each assaulted and verbally harassed each other on many occasions in the past. Due to the extensive history of domestic violence between the parties, the judge concluded that FROs were necessary to restrain N.W. and M.L. from abusing each other.

On November 12, 2008, the judge entered a FRO against M.L. barring him from visiting N.W.'s residence and place of employment and the children's school. A FRO was also entered against N.W.

III

Our review of the trial court's decision is quite limited. We are bound by the trial court's factual findings so long as they are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We also owe particular deference to the judge's credibility determinations, and to the special expertise of the Family Part. Id. at 413. We review the judge's evidentiary rulings for abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007).

Having reviewed the record with those standards in mind, we find no basis to disturb the trial judge's determinations that both parties committed acts of domestic violence on September 21, 2008 and on many prior occasions, and that FROs should be issued against both parties. The trial judge, who conducted the proceedings with admirable patience and legal expertise, issued a thorough opinion with which we agree. Except as discussed below, the parties' respective appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We find no merit in N.W.'s argument that M.L.'s counsel intimidated a proposed witness or otherwise precluded the witness from testifying. On the first day of trial, M.L.'s counsel represented to the court that she had interviewed a child, for whom N.W. was caring at the time of the September 21 incident and whom N.W. had named on her witness list. According to M.L.'s attorney, the child told her she "was watching TV and really wasn't paying attention to what was going on in the house." At no point during this colloquy with the court did N.W.'s counsel allege that his adversary had done anything inappropriate in interviewing the child. Nor did the child's mother, who testified at the trial, state that her daughter had been intimidated or mistreated. We reject N.W.'s argument, presented for the first time on this appeal, that M.L.'s counsel acted improperly in interviewing the child. There is no factual basis in this record to support such a claim.

Nor are we persuaded that the trial judge abused her discretion in allowing M.L. to play the recording of his prior interactions with N.W. While asserting that this was error, N.W. did not provide us with either a copy or a transcript of the recording, thereby effectively precluding appellate review of this issue. However, nothing in the trial record presented to us would lead us to conclude that the judge abused her discretion in listening to portions of the recording.

We likewise find no basis to disturb any of the judge's other evidentiary rulings. During the trial, neither party asked the judge to allow the children to testify about witnessing alleged domestic violence; they asked the judge to let the children testify about a visitation issue that the judge correctly ruled was irrelevant to the domestic violence trial. During summations, N.W.'s counsel mentioned that the judge might wish to interview the children about the domestic violence incident, a suggestion the judge properly rejected as untimely and inconsistent with both parties' pre-trial agreement that the children would not testify. N.W.'s additional arguments on the judge's evidentiary rulings warrant no discussion here. R. 2:11-3(e)(1)(E).

We find no merit in either party's attacks on the judge's factual findings. Her credibility determinations and factual findings are supported by the record. R. 2:11-3(e)(1)(A); Cesare, supra, 154 N.J. at 411-12. The parties have a volatile relationship that includes a regrettable history of violence on both sides. The record also supports the judge's finding that both parties committed domestic violence during the September 21, 2008 incident. The issuance of FROs was entirely appropriate on this record. See Silver, supra, 387 N.J. Super. at 127-28.

Finally, in the colloquy with counsel after the judge rendered her opinion, she indicated that she would not enter an order barring M.L. from the children's school, but rather would leave his attendance at school events to the discretion of school officials. However, the FRO with respect to M.L. barred him from "St. Theresa's school." This may have been a clerical error. But, given the history of conflict between these parties, the judge's greater familiarity with this case, and her observation on the record that the parties should not be in the same place at the same time, we deem it prudent to remand for clarification rather than modifying the order ourselves.

In remanding, we do not intend to require further trial proceedings on the issue. Rather, this very limited remand is intended to permit the judge to correct the order if there was a clerical error, or if not, to explain why M.L. is barred from

the children's school since reasons for such a provision were not stated on the record.

Affirmed in part, remanded in part.

 

The trial court issued two separate orders, one granting N.W.'s application against M.L. and the other granting M.L.'s application against N.W. Instead of the parties filing separate notices of appeal, N.W. filed a notice of appeal, and M.L. filed a cross-appeal. We have therefore consolidated the caption to be consistent with this procedural history.

State v. Driver, 38 N.J. 255 (1962).

The tape was not included as part of the record on appeal, nor were we provided a transcript of the portions of the tape that were played during the trial.

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A-1852-08T3

RECORD IMPOUNDED