F.L. v. L.A.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5215-09T3

F.L.,

Plaintiff-Respondent,

v.

L.A.B.,

Defendant-Appellant.

_________________________________

Argued May 23, 2011 - Decided July 8, 2011

 

Before Judges Sabatino and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. FV-14-000561-10.

 

Nancy C. Richmond argued the cause for appellant (Ceconi & Cheifetz, LLC, attorneys; Cary B. Cheifetz, of counsel and on the brief; Ms. Richmond and Heather C. Keith, on the brief).

 

Daniel K. Newman argued the cause for respondent (Law Offices of Daniel K. Newman, attorneys; Mr. Newman, of counsel and on the brief; Alia L. Grimes, on the brief).

 

PER CURIAM

Following several days of proceedings, the Family Part granted plaintiff F.L. a final restraining order ("FRO") against her father, defendant L.A.B., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 ("the Act"). The court also awarded plaintiff $4500 in counsel fees under N.J.S.A. 2C:25-29b(4). Defendant now appeals the entry of the FRO and the counsel fee award. For the reasons that follow, we affirm.

I.

Although the record contains a lengthy chronology of events concerning the parties' relationship, we recite only the facts and circumstances most salient to our analysis of the issues raised on appeal.

Plaintiff is a married adult with a child of her own. At the time that she filed her application for restraints against defendant, she was twenty-nine years old.

At the time of plaintiff's birth, defendant was married to plaintiff's mother. Defendant resided with plaintiff and her mother during the first two years of plaintiff's life. At that point, the mother relocated to a new residence with plaintiff and plaintiff's younger sister. Defendant stayed with them intermittently during much of plaintiff's early childhood. Her parents divorced when plaintiff was five.

According to plaintiff's testimony, defendant repeatedly engaged in odd physical acts with her when she was between the ages of six and thirteen. Among other things, plaintiff described how defendant would call her into his bedroom, make her remove her shirt, and tickle her hard enough to bruise her. Defendant also allegedly would bite plaintiff on the skull and stick his tongue in her ear. According to plaintiff, when her mother tried to get defendant to stop these inappropriate acts, he would chase the mother out of the room and "throw her head up against the wall[.]"

In November 1993, the mother obtained an FRO against defendant, on the basis that he had committed acts of assault, terroristic threats, and criminal mischief. The mother's FRO included restraints upon defendant's contact with plaintiff, who was then still a minor. In 1999, defendant moved to dissolve the mother's FRO, an application that Judge Convery denied following a hearing. In his written opinion denying the motion to dissolve, Judge Convery found that defendant "continues to attempt to assert power and control over the [mother] and his children."

After plaintiff turned eighteen, she tried to avoid her father, but he apparently persisted in attempting to contact her. According to plaintiff, defendant would scream at her and threaten her when she refused to speak with him. Nevertheless, she received numerous unwanted telephone calls and mail from him, to an extent that at times she allegedly did not maintain a phone in her own name.

Plaintiff moved to various locations around the country, but she was often unable to maintain her privacy from defendant. For example, plaintiff recounted an incident in 2001 while she was living in Virginia. Defendant knocked on her door, uninvited, after driving there from New Jersey. According to plaintiff, she refused his entreaties, stating that she did not want a relationship with him.

At some point in 2005, at the suggestion of her husband, plaintiff attempted to reconcile with defendant. During that brief period, plaintiff received a loan from her father for a down payment on a home. Plaintiff contended that she paid back the loan, but defendant kept trying to collect on it even after it was paid. Consequently, in the summer of 2007, plaintiff discontinued her reconciliation efforts. However, defendant allegedly kept calling plaintiff on a "constant" basis at her office and her home. He left telephone messages, threatening plaintiff that if she did not return his calls, he would go to her house, which, at the time, was in South Carolina.

The incident that prompted plaintiff to seek an FRO against defendant in her own right occurred on November 16, 2009, after plaintiff had moved back to New Jersey. According to plaintiff's testimony, at around 9:00 p.m. that night, she was sitting on the front porch of her home making a phone call when a car drove in front of her home, and proceeded to alternately pull forward and reverse. Plaintiff stated that the car pulled up near her house, and then she noticed a person crouching near her front door. Plaintiff stood up, recognizing the person to be her father. Plaintiff testified that she said "Dad?" and defendant "started cackling" in response.

According to plaintiff, at that point, she called her husband, who was inside the home. Her husband came outside and asked defendant his purpose. Defendant then started to walk away, allegedly telling plaintiff, "I just wanted you to know I know where you live." Plaintiff's husband told defendant to leave or he would call the police. Defendant then stared at plaintiff's husband, started cackling again, and "aggressively" drove off.

Following the November 2009 incident, plaintiff sought and obtained a temporary restraining order ("TRO") against defendant. Defendant denied committing any wrongful acts against plaintiff, contending that his efforts to locate and maintain contact with her as his daughter were entirely benign.

After considering the testimony at the FRO hearing, Judge Critchley granted plaintiff's application for permanent restraints on January 15, 2010. In his oral ruling, the judge generally found plaintiff's version of the events credible, and discredited defendant's account. Noting the prior history dating back to plaintiff's childhood, the judge found significant defendant's long-standing efforts to exert power and control over plaintiff and her mother. The judge concluded that defendant had violated the Act by harassing and by stalking plaintiff, and that restraints were warranted for plaintiff's future protection. After issuing the FRO the judge subsequently awarded $4500 in attorney's fees to plaintiff as the prevailing party.

In his appeal, defendant argues that: (1) plaintiff lacked standing to seek relief against defendant under the Act because they had not cohabitated for more than two decades; (2) the court lacked subject matter jurisdiction, also because of the lapse of time since cohabitation; (3) his conduct did not amount to domestic violence under the Act; (4) the trial court unfairly denied him an adjournment on the final hearing date, thereby depriving him of due process of law; and (5) the award of counsel fees was unjustified. We are not persuaded by any of these contentions.

 

 

II.

A.

As a predicate matter, defendant contends that too much time has passed from the time he lived with plaintiff in her childhood for her to now obtain restraints against him under the Act. Defendant characterizes this time lapse as signifying both a lack of plaintiff's standing and a lack of the court's subject matter jurisdiction. The trial judge rejected these contentions, and so do we.

The governing statute, N.J.S.A. 2C:25-17 to -35, evidences New Jersey's strong policy against domestic violence. Cesare v. Cesare, 154 N.J. 394, 400 (1998). Because the Act is remedial in nature, it is to be construed liberally, giving its terms "the most extensive meaning of which they are reasonably susceptible." Tribuzio v. Roder, 356 N.J. Super. 590, 596 (App. Div. 2003). According to the Legislature, the purpose of the Act is to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

Under the Act, a "victim of domestic violence" is defined, in relevant part, as:

a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.

 

[N.J.S.A. 2C:25-19d.]

 

Domestic violence, in turn, is defined as "the occurrence of one or more" of a list of enumerated acts, which include harassment1 and stalking.2 N.J.S.A. 2C:25-19a(13), (14).

The pivotal question for purposes of standing and jurisdiction3 is whether defendant is a "former household member" of plaintiff within the meaning of N.J.S.A. 2C:25-19d. We are satisfied that he is.

We recognize that our case law has not endorsed the proposition that a "former household member" under the Act encompasses any person who shared a household with the plaintiff at any time in his or her life. See Jutchenko v. Jutchenko, 283 N.J. Super. 17, 20 (App. Div. 1995); Coleman v. Romano, 388 N.J. Super. 342, 349 (Ch. Div. 2006). Instead, the cases have looked to a variety of factors, including but not limited to the passage of time. These factors were outlined in Coleman, supra, 388 N.J. Super. at 351-52, as follows:

(1) the nature and duration of the prior relationship;

 

(2) whether the past domestic relationship provides a special opportunity for abuse and controlling behavior;

 

(3) the passage of time since the end of the relationship;

 

(4) the extent and nature of any intervening contacts;

 

(5) the nature of the precipitating incident; and

 

(6) the likelihood of ongoing contact or relationship.

 

Defendant stresses the third listed factor the passage of time since the end of the relationship noting that he has not cohabitated with plaintiff for over two decades. However, the cessation of cohabitation alone does not necessarily signify the end of a "relationship." Here, plaintiff and defendant still have a familial relationship. Their interactions continued through much of plaintiff's childhood, even after plaintiff and her mother moved away, until plaintiff's mother obtained an FRO in 1993. Moreover, defendant persisted in attempting to revive and maintain a relationship, even after plaintiff as an adult woman made clear to him that she did not want to remain in contact with him. The period of attempted reconciliation in 2007 also distinguishes this from a scenario of continuous separation since the time of the parties' common residency in the same household.

Plaintiff's relationship with her father cannot be viewed solely in terms of their combined residence for the first two years of her life. The testimony established that the relationship endured for a significant period of time. After the period of combined residence, there was substantial contact in a household setting while plaintiff lived in South Orange for the majority of her childhood. Defendant evidently stopped residing with the family when she was about five to six years old. However, according to plaintiff, from the ages of six to thirteen, defendant had over one hundred instances of inappropriate physical contact with her in his bedroom. Whether he was actually living in the family's residence, defendant apparently was present in the home on a regular basis. An amendment to the restraining order between plaintiff's mother and defendant, in 1994, corroborated plaintiff's claim of this inappropriate contact. The last of these incidents, according to plaintiff, prompted her mother to seek an FRO. The record further indicates that there were additional incidents of inappropriate conduct, one as late as 1998, involving a struggle in defendant's car after an instance of such contact.

The other five factors cited in Coleman weigh in favor of plaintiff's standing and the court's jurisdiction under the Act. The nature of the relationship is that of a parent and a child, a relationship that is commonly enduring and one of dominance. Plaintiff and defendant lived together for several years. The relationship has afforded defendant, particularly because of his superior financial position, a "'special opportunity for abuse and controlling behavior.'" Coleman, supra, 388 N.J. Super. at 351 (quoting Jutchenko, supra, 283 N.J. Super. at 20). There have been numerous intervening contacts, despite plaintiff's various moves around the country and her efforts to, for the most part, keep her father out of her adult life. The precipitating incident from November 2009 bespeaks an effort by defendant to capitalize on his parental status and put plaintiff ill at ease. There is also a "likelihood of ongoing contact," given defendant's past conduct in traveling to distant states in order to track plaintiff down.

Even when plaintiff moved out of the state, defendant continued to attempt to have a relationship with her, despite the fact that his overtures were unwanted and annoying to her. He sent letters, made numerous phone calls, and even appeared at plaintiff's Virginia residence unannounced. The predicate incident in November 2009 continued this pattern of attempting to make unwanted contact with plaintiff, as defendant used a paid service to locate her, drive to her house, and made sure to emphasize to her that he now knew where she lived.

Defendant attempts to analogize the circumstances here to those in Jutchenko, supra, and in Sisco v. Sisco, 296 N.J. Super. 245 (Ch. Div. 1996), cases in which the plaintiffs and the defendants were relatives who had previously resided together but who were not treated as "former household members" within the meaning of the Act. Neither of these cases is factually analogous to the present case.

In Jutchenko, we reversed the entry of an FRO obtained by a middle-aged man against his middle-aged brother. The brothers had not resided with one another for about twenty years. Jutchenko, supra, 283 N.J. Super. at 18, 20-21. In that case, we found that the lapse of time was particularly significant because the plaintiff had not made a showing that the brothers' past relationship provided the defendant with a "special opportunity" for "abusive and controlling behavior." Id. at 20. As we have already noted, such a special opportunity inheres in the father-daughter relationship in this case, and therefore Jutchenko is readily distinguishable.

Sisco, supra, is not sufficiently comparable to this case, either. We recognize that Sisco did involve a daughter who sought a restraining order against her father, and parties that had not resided together for fifteen years. Id. at 246. The daughter claimed that her father had acted violently towards her when she was a child. However, the court characterized that as "an isolated incident of claimed excessive parental discipline[.]" Id. at 249. In addition, the father and daughter had conflicts over her decision to marry a professor while she was in college and her later decision to have a child out of wedlock. Id. at 247. These disagreements do not rise to the same level of control and power reflected in the present chronology. By contrast, plaintiff here alleged over a hundred instances of inappropriate conduct in her father's bedroom. Further, with the exception of the loan for the home purchase and the brief attempt of reconciliation, plaintiff had gone to great lengths to try to maintain her privacy, only to have defendant repeatedly intrude on her solitude. The jurisdictional predicates for invoking the protections of the Act are far stronger here than in Sisco.

In sum, we conclude that plaintiff had standing to seek restraints against defendant under the statute, and that the trial court therefore properly exercised its jurisdiction.

 

 

B.

Defendant next contends that the proofs are insufficient to show that he engaged either in acts of harassment or stalking, that harassment in particular was not pled in plaintiff's complaint seeking restraints, and that the FRO must be vacated because the trial judge's findings were inadequate. We disagree.

In reviewing the trial judge's factual determination that defendant engaged in acts of domestic violence, we must accord the considerable degree of deference that we give to decisions of Family Part judges. Given the Family Part's special expertise, we must give due regard to fact-finding in cases litigated in that court, and to the conclusions that logically flow from such findings. Cesare, supra, 154 N.J. at 412-13; Pascale v. Pascale, 113 N.J. 20, 33 (1988). We also must respect the judge's credibility determinations and "feel for the case" that emanate from the judge's opportunity to see and hear the witnesses. Cesare, supra, 154 N.J. at 411-12; see also Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

The standards of proof in a domestic violence case are not as stringent as those in a criminal matter. A complainant only needs to establish a predicate offense under the Act by a preponderance of the evidence. N.J.S.A. 2C:25-29a. That threshold was surpassed in this case with respect to both stalking and harassment.

Under N.J.S.A. 2C:12-10b, a person commits stalking "if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress." A "course of conduct" is defined under this provision as:

[R]epeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.

 

[N.J.S.A. 2C:12-10a(1).]

"Repeatedly" is defined, for purposes of the stalking statute, as "on two or more occasions[.]" N.J.S.A. 2C:12-10a(2); see also H.E.S. v. J.C.S., 175 N.J. 309, 329-30 (2003) (applying the statutory element of repetition in upholding an FRO based upon stalking behavior).

Applying these elements, the trial court had ample basis to conclude that defendant's repeated efforts to track down his daughter and to interfere with her life constituted acts of stalking. Defendant contends that his conduct was benign and, in particular, that it was not shown that he had committed any wrongful acts "repeatedly." The trial judge determined to the contrary, specifically finding that "in the historical context of this case there were two or more occasions" of stalking behavior. That finding is supported by substantial credible evidence in the record, particularly the multiple unwanted letters, telephone calls, unannounced visits, and communications to plaintiff portending that she would continue to be disturbed by defendant until she allowed him to have a relationship with her. There is sufficient credible evidence in the record to support a logical inference that a reasonable person in plaintiff's shoes would fear physical harm from these repeated intrusions.

Apart from stalking, the proofs in the record also support the trial judge's finding of harassment, an independent ground to issue restraints under the Act. A person is guilty of harassment if, with the purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

 

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

 

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

 

[N.J.S.A. 2C:33-4a, b, c.]

 

The judge found defendant's conduct sufficient to prove harassment and to justify an FRO to protect plaintiff from future harassment:

I also find, although it was not checked off in the complaint, that in context this incident of November the 16th, 2009, is harassing, and reflecting on the phrase, "I just want you to know I know where you live." Threatening, would be considered satisfying the statutory criteria for terroristic threats. I haven't thought that through comprehensively. But certainly harassing in the sense that it was a communication anonymously or at extremely inconvenient hours, or in any other manner likely to cause annoyance or alarm, an invasion of the victim's privacy. I think that's clear on its face.

 

Defendant maintains that the trial court lacked the authority to make a finding of harassment because that specific offense was not checked off by plaintiff in her original complaint form, and that he was therefore deprived of fair notice of the accusation. However, the body of plaintiff's complaint, which was subsequently amended on December 2, 2009, made it more than clear that the allegations involved both harassment and stalking, explicitly alleging that "[p]laintiff has been repeatedly harassed and stalked." Defendant's counsel did not object to plaintiff amending her complaint at the court's invitation at a pretrial proceeding on December 2, 2009. Moreover, it was well known, prior to the date of the plenary hearing, which began on January 12, 2010, what was to be the substance of plaintiff's allegations and testimony. A preliminary hearing was held on December 21, 2009, during which time the judge questioned plaintiff extensively about the scope of the complaint, and elicited much of the testimony that would be established during the plenary hearing. There is no basis to find fundamental unfairness because the box on the complaint form associated with harassment was left unchecked.

The evidence amply supports the trial court's finding that defendant's behavior constituted the harassment of plaintiff. Defendant specifically testified that he knew plaintiff did not want to have any contact with him, except for during the short interval of attempted reconciliation. Even with this knowledge, he sent letters and faxes, he made repeated telephone calls, and he suddenly appeared, unannounced and uninvited, at plaintiff's different residences. Defendant's course of conduct underscores his improper intent, and the evidence amply supports a finding of repeated instances of harassment.

C.

Defendant contends he was denied due process because the trial court: (1) denied defense counsel's request for adjournment on January 15, 2010; (2) denied defendant his right to finish testifying and to call plaintiff's mother as a witness; and, (3) denied defendant's request to conduct additional discovery. None of these arguments have merit.

Defendant testified in considerable detail on January 12, 2010 about the substance of the allegations against him and, in particular, provided his own narrative of the critical events of November 16, 2009. As the court day was nearing an end, the proceedings were continued to January 15, 2010. It was made eminently clear to the parties and their counsel that the case would be resumed on January 15.

Instead of appearing in court on January 15, defendant tendered, through his counsel, a request for an adjournment and a purported medical excuse. Defense counsel presented a note from a physician, dated January 14, 2010, which stated that defendant has been under the physician's care for approximately eighteen years for various problems, including insulin-dependent diabetes. The physician indicated that he had seen defendant in his office on January 14 with complaints of upper respiratory symptoms and uncontrolled diabetes. He prescribed medication and bed rest, in addition to close monitoring of defendant's blood sugar. The physician further indicated that in his medical opinion, defendant should be excused from appearing in court on January 15 due to medical necessity, and that defendant would return to the physician's office on Monday, January 18, to be re-evaluated in order to determine whether he would be medically able to resume his court appearance.

Plaintiff's counsel argued that the doctor's note was contrived, noting that defendant and the physician had been friends for many years. Plaintiff advised the court that she had seen defendant the previous day at a shopping mall buying cookies. Plaintiff also indicated that earlier on that same day defendant had had a verbal altercation with an auto repair shop about a disputed invoice.

Given the circumstances, the trial judge denied defendant's application for an adjournment. The judge found that defendant's medical excuse, given the circumstances, involved "self-reported" symptoms and was, in essence, pretextual. The judge took into account defendant's extensive past involvement in litigation, as well as his efforts to exert power and control over plaintiff.

Although his counsel was present, defendant did not call any other witnesses on January 15. The case was concluded after some limited testimony from plaintiff about her observations of defendant the previous day buying cookies at the mall. The judge heard oral argument from counsel, and then rendered his final decision on the FRO application.

Defendant argues that the judge acted unfairly in not excusing him from court on January 15 and in denying his adjournment request. In post-hearing submissions, defendant attempted to reconcile his alleged medical incapacity with his conduct in buying cookies at the mall and in quarreling with the auto repair shop. Plaintiff argues that these attempted explanations are also unwarranting of belief. The granting or denial of an adjournment request rests within the sound discretion of the trial court. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (citing Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952)); see also State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). That discretion was not abused under the particular circumstances of this case.

Domestic violence cases, because of their time-sensitive nature, are to be adjudicated expeditiously. This case had already been to court on multiple dates with extensive pre-trial arguments. The judge had a legitimate basis to infer that defendant was exaggerating his medical condition in order to protract the proceedings even further, as another means of exercising control over plaintiff. Notably, although defendant claims that his proofs were cut short and he would have presented other witnesses, no such defense witnesses were present to proceed in court on January 15, despite defendant's absence. It appears that defendant unilaterally presumed that the court would adjourn the case based upon his last minute request, an assumption that he was not entitled to make. Given these distinctive circumstances, we sustain the trial court's decision to go forward and complete the case in defendant's unexcused absence.

The balance of defendant's arguments, including his contentions respecting inadequate discovery, lack sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(1)(E).

D.

Lastly, defendant challenges as excessive the $4500 counsel fee award. We need not say much about his argument. Under N.J.S.A. 2C:25-29b(4), reasonable counsel fees may be awarded to a successful complainant, in the court's discretion. See McGowan v. O'Rourke, 391 N.J. Super. 502, 507-08 (App. Div. 2007). In assessing the reasonableness of a fee award on appeal, we only set such awards aside or modify them where the award comprises a "clear abuse of discretion." Id. at 508 (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001)). We are satisfied that the fees awarded in this case were reasonable and justified.

Affirmed.

1 See N.J.S.A. 2C:33-34.

2 See N.J.S.A. 2C:12-10.

3 We need not address defendant's claim that the trial court improperly accepted his "waiver" of subject matter jurisdiction. Because subject matter jurisdiction cannot be waived, see State v. Osborn, 32 N.J. 117, 122 (1960), the pertinent issue is whether the factual circumstances do or do not support subject matter jurisdiction.