E. M v. G. M
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4952-09T2
September 15, 2011
Argued January 5, 2011 - Decided
Before Judges Fuentes and Gilroy.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FV-12-1777-10.
Michael J. Convery argued the cause for
Susan McCue argued the cause for respondent
(Central Jersey Legal Services, Inc., attorneys;
Ms. McCue, on the brief).
Defendant G.M. appeals from a final restraining order (FRO) issued by the Family Part pursuant to a complaint filed by plaintiff E.M. under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. After considering the evidence presented at trial, the court found defendant committed the predicate offense of harassment. The court also found that the issuance of final restraints was necessary to prevent future abuse.
Defendant argues that the evidence presented at trial does not support a finding of harassment under N.J.S.A. 2C:33-4(c). We agree and reverse.
The parties are married1 and have two daughters ages five and two. The incident that gave rise to this litigation occurred on January 25, 2010, at approximately eight o'clock in the morning. According to plaintiff, defendant came into the bedroom where she had been sleeping and "snatch[ed] the covers off of [her] and pulled [her] out of bed." Plaintiff described defendant's demeanor as "like he was ready to do [her] in . . . ." Plaintiff testified defendant then "proceeded to push [her] out of the bedroom."2 She prevented defendant from pushing her down the steps by going into the bathroom.
From this point, plaintiff testified she was "holding on for dear life" because defendant allegedly tried to pull her "any way he could, [by her] neck, hair, arms with two hands to get [her] out of the bathroom to tell [her], come on let's go downstairs." When defendant was unable to get plaintiff out of the bathroom, he allegedly pushed her and she "fell back . . . in the bathroom" and "hit" her head against the bathtub. According to plaintiff, at the point when it looked to her as if defendant "was getting ready to strike [her]," one of their daughters came out of the bedroom crying. Defendant immediately went over to comfort the child and ceased his attack on plaintiff.
Plaintiff testified that she and defendant remained in the house together for the entire day without further incident. She kept mostly to herself in the upstairs part of the house, while defendant remained downstairs. Plaintiff did not call the police nor seek a temporary restraining order at the time. The next day, January 26, 2010, plaintiff left her house with the two girls and moved into a "temporary protective shelter," where she remained up to the date this matter came to trial on May 13, 2010.
Plaintiff did not file a domestic violence complaint against defendant until February 18, 2010. The complaint alleged simple assault, N.J.S.A. 2C:12-1(a), and harassment, N.J.S.A. 2C:33-4(c), as the predicate offenses for the relief sought. When her attorney asked why she waited twenty-four days after the incident to seek judicial relief, plaintiff gave the following response:
PLAINTIFF: Well, I finally mustered the courage to go out on my own -- to proceed to do that. Prior to that, I've been getting rides to all my appointments, even court ordered appointments, they schedule . . . persons to pick me and my girls up from DYFS3 to take us to the girls appointments, to my appointments. And they finally . . . indicated that I needed to possibly start driving, you know my own because they knew I was going to file the restraining order.
PLAINTIFF'S COUNSEL: Okay. So from . . . January 26th  until actually, now you've been in . . . a shelter?
PLAINTIFF: Yes. I'm still there now.
PLAINTIFF'S COUNSEL: And during that time [twenty-four days] what prevented you from going sooner to get a restraining order?
PLAINTIFF: Well, the main thing was my girls. I mean because as early as November he indicated he had [an] unregistered gun, he didn't mind going to jail, he's ready to die. And I knew I had to -- as much as possible, although I was -- starting to put me in distress, I knew I had to be there for the girls. I tried to keep a distance but at some point, you know he feels he can do whatever he wants to do and you know, and push boundaries. So, when it came [to] a point where [it trickled] down to my girls, I had to make a move that the emotions really was just overwhelming.
PLAINTIFF'S COUNSEL: Okay. I'm just asking you what prevented you from going sooner? Just a brief answer.
PLAINTIFF: Well, I seen and I've heard of even worse situations but when it came to me having to be a responsible parent, I -- I was even more moved to make a move to --
PLAINTIFF'S COUNSEL: Okay. Listen.
PLAINTIFF: To be in a safe environment.
PLAINTIFF'S COUNSEL: Okay. So, what took you so long from January 26th  until February 18th  to get your restraining order?
PLAINTIFF: Well, like I said I finally got the courage to go out on my own to do it.
PLAINTIFF'S COUNSEL: So, you're saying before then
PLAINTIFF: I came on my own before then.
PLAINTIFF'S COUNSEL: You did not have the courage to go out on your own?
PLAINTIFF: No, I did not. I was afraid.
Further questioning revealed that, along with DYFS's assistance, plaintiff had a van available to her "parked outside" that she could have used to drive to the courthouse.
In addition to the two predicate offenses, the domestic violence complaint alleged past incidents of domestic violence. Generally, the complaint alleged that defendant "was always verbally abusive," which began to escalate to physical violence. The complaint further noted that "[p]olice have been called in the past." Specifically, the complaint mentioned an incident in 2007 that occurred while plaintiff was pregnant when defendant allegedly held plaintiff by the neck, causing "scratches."
On March 4, 2010, with the assistance of counsel, plaintiff amended the initial complaint to include several more incidents of past domestic violence: (1) in July 2009, defendant "pulled the plaintiff down four steps and then got on top of her and held her down because she had stayed with a relative overnight"; (2) in June 2009, defendant "pushed the plaintiff down on the ground for the same reason"; (3) on October 18, 2006, defendant pulled plaintiff's arm, raised his arm in a menacing manner, and verbally threatened her by insinuating he would stab or shoot her; (4) in December 2004, defendant grabbed plaintiff's hand and cut off her engagement ring during an argument; and (5) in 2003 or 2004, defendant pulled plaintiff's legs out from under her, causing her to fall and strike a dresser. Plaintiff attempted to elaborate at trial as to these alleged past incidents of domestic violence. As the trial judge noted, however, plaintiff's testimony in this respect was evasive, confusing, and at times incomprehensible. She was consistently non-responsive to the questions posed by her own counsel.
On cross-examination, defense counsel confronted plaintiff with a police report indicating that she had called the police on January 26, 2010, the day after the alleged assault, to accuse defendant of sexually molesting their daughters. The report does not mention, however, any incident of domestic violence committed by defendant against plaintiff. Plaintiff could not explain why she did not tell the police that defendant had assaulted her the previous day. Plaintiff also indicated that she had not filed a domestic violence complaint or sought police assistance for any of the alleged past incidents of domestic violence described in her pleadings, thus calling her credibility into question.
Defendant denied he assaulted plaintiff on January 25, 2010, labeling it "a fabrication." According to defendant, on the Friday before the alleged January 25, 2010 incident, plaintiff and he had plans to go to his brother's house in Maryland to watch a football game. Defendant had purchased steaks and seafood to take to his brother's house. The couple had agreed to leave around two o'clock in the morning.
That evening, plaintiff and defendant's other brother, J.M., who also resided in the marital home, left the house to buy supplies and personal toiletries for plaintiff. Some time later, J.M. returned without plaintiff, who did not return to the marital residence until three o'clock Sunday morning "wreaking of alcohol and smoke." Defendant told plaintiff he did not want to share a bed with her in this condition, and told her to take a shower. She eventually complied and was remorseful about her prolonged, unexpected absence.
Defendant testified he kept his distance from plaintiff the rest of that day. Because the Maryland trip had not taken place, defendant decided to grill the steaks and seafood and share them with J.M. Plaintiff became upset at defendant when he and J.M. ate the food without sharing it with her. According to defendant, he deliberately decided not to cook for plaintiff because he was still angry about her two-day absence. He claims he did not have any interaction with plaintiff for the remainder of the day.
When defendant left for work the following day, Tuesday, January 26, 2010, he took the keys to the family van because he did not want plaintiff driving around with the children. When he returned home at the end of the work day, the van was gone, together with plaintiff and the two girls. At first, defendant thought the van had been stolen. When he called plaintiff to inquire, however, she told him she had taken the van4 and was in a hospital with the girls. It was at this time that defendant learned plaintiff had reported to DYFS that he was sexually molesting his daughters.5
J.M. testified on defendant's behalf. He corroborated defendant's account of what occurred on Friday night and during the day on January 25, 2010. He saw his brother and sister-in-law arguing about breastfeeding one of the girls. According to J.M., his brother was concerned about plaintiff "hanging out" that weekend and how her consumption of alcohol might affect the quality of the breast milk. Although he witnessed "very loud yelling back and forth," J.M. did not see any physical confrontation.
On cross-examination, J.M. testified about an incident in November 2007 in which the police responded to an altercation between plaintiff and defendant. Plaintiff had testified earlier that this incident involved an argument between herself and the defendant over a problem with the washing machine. J.M. testified that he separated the two, "restraining both of them . . . ." According to J.M., defendant held plaintiff by her wrists to prevent her from striking him. J.M. was also asked about an incident in October 2006 when the police again responded to an argument between the parties. Once again, J.M. described his role as separating the two, without expressing an opinion as to who was to blame.
Against this record, the trial judge found plaintiff did not prove, by a preponderance of the evidence, that defendant assaulted her on January 25, 2010. The court made the following preliminary findings in support of this ruling:
The issues before the court essentially boil down to credibility findings. The Court has certainly had the opportunity to observe both of the parties, as well as the witness on behalf of the defendant, who was his brother [J.M.]. And in making some determinations with credibility the plaintiff for example tended to be rambling in her responses, she was not responsive in her responses. Both are indicative of . . . a lack of credibility.
The court found plaintiff's testimony evasive and rambling, despite "being told several times by the court that it's necessary for her to be responsive to the questions that are being asked." The court also found defendant's testimony to be "similarly lacking in credibility." The judge focused on defendant's statement that his wife did not "deserve[ ] . . . to have any steak," and his refusal to allow his wife access to the keys to the van, finding his behavior "indicative of somebody that's [somewhat] of a controlling nature." In short, the court found serious credibility problems with both parties' account of events.
Despite this evidentiary void, the court found defendant engaged in the predicate act of harassment, as defined in N.J.S.A. 2C:33-4(c). The court articulated its findings in this respect in a supplemental written opinion filed pursuant to Rule 2:5-1(b). The court first described the statutory elements on harassment under subsection (c):
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
. . .
(c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
The court found that "a combination of four factors" established defendant "committed an act of harassment." These four factors were: (1) the October 2006 incident; (2) the November 2007 incident; (3) defendant's refusal to cook plaintiff the steak on January 25, 2010; and (4) defendant's refusal to give plaintiff the van keys the following day. The court then cited H.E.S. v. J.S.C., 175 N.J. 309, 327 (2003), for the proposition that a purpose to harass may be inferred from the totality of the evidence presented. With this legal principle as a backdrop, the court concluded that "the cumulative effects of the Defendant's actions . . . gave rise to a determination that he intended to harass the Plaintiff."
Our standard of review requires us to uphold a trial court's findings provided they are supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The need to defer to the trial court's findings is even more acute "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citation omitted). Thus, we will 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 . . . ." Rova Farms, supra, 65 N.J. at 484 (internal quotation marks and citation omitted). Finally, our Supreme Court has also recognized that Family Part judges have "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).
In her initial complaint, plaintiff alleged she was brutally assaulted by defendant in her own bedroom, while their two young daughters slept in a nearby room. She spent the remainder of the day in the marital residence with defendant. The following day, plaintiff left the marital residence with her daughters and took refuge in a shelter for victims of domestic violence, where she resided up to the date of trial for the FRO. That same day, plaintiff called the police and accused defendant of sexually molesting his two daughters. She did not mention to the police the assault that had allegedly occurred the previous day.
With the assistance of competent counsel, plaintiff amended her initial complaint to further allege a history of domestic violence expanding over seven years. The pleadings described a series of violent episodes through which plaintiff was repeatedly assaulted by defendant, requiring the intervention of the police on at least two occasions.
Unexamined, these allegations paint a picture of a harrowing ordeal of violence and emotional terror. The court found and the record reflects, however, that plaintiff's testimony was evasive and unresponsive, even when responding to her own attorney's questions on direct examination. Through the rigor of cross-examination by defense counsel, as well as the court's own independent observations and assessments, plaintiff's account of events proved to be less than credible.
The court thus found plaintiff did not prove, by a preponderance of competent and credible evidence, that defendant committed the predicate offense of simple assault, as defined in N.J.S.A. 2C:12-1(a). That decision is not challenged on appeal. The court also did not find credible plaintiff's allegations of a history of domestic violence at the hands of defendant.
Despite these well-founded reservations concerning plaintiff's credibility, the court found defendant committed domestic violence based on the petty disorderly persons offense of harassment, as defined in N.J.S.A. 2C:33-4(c). This finding is not supported by the record. The court relied on four separate incidents that, when viewed in the totality of the circumstances, it found amounted to harassment. This conclusion is not legally sustainable.
The first incident relied on by the court to find harassment occurred in October 2006. According to defendant's brother J.M., he restrained both parties to prevent them from "going at each other." Defendant was yelling at plaintiff and "keeping her at bay" and holding her by the wrists "because she seemed out of control." The police responded to the scene. No arrests were made and plaintiff did not seek a temporary restraining order.
The second incident relied on by the court to support a finding of harassment occurred in November 2007. Plaintiff testified that during an altercation, defendant grabbed her by the wrists, causing some scratching. Defendant denied the allegation. J.M. testified that he was forced to separate the parties because defendant, not plaintiff, "got scratched in the face." The police again responded to the scene. No one was arrested or charged with a domestic violence offense.
The third incident relied on by the court occurred on January 25, 2010. On this date, defendant had purchased steaks and seafood which he intended to grill during a family trip to Maryland. When plaintiff returned to the marital residence that evening, after being away for two days, defendant grilled steaks for himself and his brother, but refused to cook for plaintiff. The court characterized defendant's action as "condescending" and "indicative of a superiority attitude."
The final incident occurred the following day, January 26, 2010. According to defendant, he took plaintiff's keys to the van after she returned home after being away for the weekend. Defendant did this because he did not want plaintiff to drive around with the children or "hang out with her drug friends." Defendant testified he had taken the keys on other occasions when plaintiff had gone away for three or four days at a time. The court characterized defendant's conduct here as "spiteful" and "one additional example of his efforts at seriously annoying the Plaintiff."
Under N.J.S.A. 2C:33-4(c), a person commits the petty disorderly persons offense of harassment if he engages in a course of alarming conduct or repeatedly committed acts with the purpose to alarm or seriously annoy another person. The key element of this offense is evidence showing a purpose to harass. State v. Hoffman, 149 N.J. 564, 576 (1997). As our Supreme Court has recently held:
[H]arassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord. Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of "ordinary domestic contretemps" presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application.
[J.D. v. M.D.F, ____ N.J. ____, _____ (2011) (slip op. at 17-18) (internal citations omitted).]
Here, the four incidents relied on by the court are devoid of evidence showing defendant's purpose was to harass plaintiff. The incidents involving defendant's refusal to cook plaintiff a steak and taking away the van keys clearly fall within the category of "ordinary domestic contretemps." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). The 2006 and 2007 incidents were not listed in support of the predicate offenses in the complaint. Their role should have been restricted to the secondary determination of whether a restraining order is necessary to prevent future abuse. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).
Finally, there is no competent credible evidence to find that final and permanent restraints are necessary to protect plaintiff from future abuse. Ibid. The court's rejection of plaintiff's account of physical abuse at the hands of defendant as not credible directly undermines any need for an FRO.
1 Although they have been married for only five years, plaintiff testified that she and defendant "have been together" for approximately sixteen years.
2 Although their young daughters were sleeping in their room nearby, plaintiff testified they were not awakened by the incident because defendant closed the door to the girls' bedroom. Plaintiff claimed this gesture by defendant was indicative of his pattern of hiding his violent conduct from witnesses, including their daughters.
3 Division of Youth and Family Services.
4 Although not clear from the record, it appears plaintiff had her own set of keys to the van, because defendant testified he took the keys to the van when he left for work on Tuesday, January 26, 2010.
5 The record before us does not disclose the status of the DYFS investigation. The only oblique reference to this issue is found in the following remark made by defense counsel during his summation: "The DYFS proceedings . . . have taken a toll on [defendant.] He's now only granted supervised visitation to see his children."