C.L.V J.P

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2061-10T1

C.L.V.,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Appellant.

________________________________________________

February 16, 2012

Argued January 31, 2012 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-00808-11.

J.P., appellant argued the cause pro se.

Vincent J. Gaughan argued the cause for respondent (Law Offices of Vincent J. Gaughan, attorney; Mr. Gaughan, on the brief).

PER CURIAM

Defendant J.P. appeals a final restraining order (FRO) entered after a hearing in this action brought by his ex-wife, plaintiff C.L.V., pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We remand for a new hearing because the trial judge failed to permit cross-examination and did not make clear findings as to the predicate act or acts of domestic violence or whether the harassment found to have occurred warranted entry of an FRO.

The evidence adduced at the hearing consisted only of the parties' testimony and the airing of voice mail recordings left by plaintiff on defendant's telephone. We need not go through a painstaking review of this evidence. It suffices that the parties were recently divorced and have since had numerous discussions and disagreements about custody and visitation issues. The record also reveals -- as the trial judge astutely recognized -- that many of the communications that generated this domestic violence complaint were triggered because plaintiff recently met a man through the Internet and rather quickly moved him into the former marital residence. The judge found that the new man's presence had angered defendant and also had an impact on the children, who were ten and seven years old at the time of the hearing.

The complaint alleged, as domestic violence, a host of events that occurred between October 29, 2010 and November 3, 2010, when plaintiff sought entry of a temporary restraining order pursuant to the Act. Plaintiff alleged that: on November 3, 2010, defendant "texted [her] 33X" and threatened to take the children away from her; on November 1, 2010, defendant "texted [her] and told her, 'good luck in court[,] Johnnie Cochran can't help you'"; on November 1, 2010, defendant called plaintiff vile names, which we need not repeat here, and threatened to take the children away from her; and on October 29, 2010, defendant "kidnapped kids." In the paragraph labeled "history of domestic violence," plaintiff set forth a litany of other similar events and communications.

At the hearing, the judge questioned the pro se parties to ascertain the facts and determine whether an act of domestic violence had occurred. Much of what the parties disputed related to communications regarding the children and the man who plaintiff permitted to live in the former marital residence. Defendant did not deny sending numerous text messages1 to plaintiff but explained it was a way of communicating with plaintiff regarding the dropping off and picking up of the children and their things. The allegation that defendant "kidnapped [the] kids" was not substantiated; defendant played a voice mail, apparently left on his cellphone on October 22, 2010, in which plaintiff voluntarily turned over the children to reside with him for an indefinite period of time. She acknowledged in that message, among other things, that defendant was "a superb father," and after rightly expressing a concern about negative things being said in the children's presence, plaintiff concluded with the following:

So, you can have them. Just make sure that -- like I said, I'll give you their schedules. I don't know if you have money to hire a sitter or -- I really don't even know your situation, nor do I not want to know your situation. But, yeah, just make sure that [their] appointments are met. And I'll talk to you later and we can go over the details. All right? Bye.

Defendant disputed the "Johnnie Cochran" remark, and plaintiff failed to demonstrate how that comment represented an act of domestic violence. He also denied calling plaintiff vile names on the date in question but conceded he had used similar language in the past.

Ultimately, the judge made findings that defendant had engaged in harassment and entered an FRO. Defendant appealed, presenting the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY FAILING TO ADVISE DEFENDANT OF THE SERIOUSNESS OF THE PROCEEDINGS AND THAT HE HAD THE RIGHT TO AN ADJOURNMENT TO RETAIN COUNSEL.

II. THE TRIAL COURT ERRED IN DENYING DEFEN-DANT'S MULTIPLE REQUESTS FOR ADJOURNMENT [OR] CONTINUANCE.

A. ADJOURNMENT DENIED TO RETAIN COUNSEL, SUBPOENA WITNESSES TO PROCURE SUPPORTING DOCUMENTATION FOR DEFENSE.

III. THE TRIAL COURT ERRED BY FAILING TO FULLY CONSIDER WHETHER PLAINTIFF WAS USING DV COMPLAINT TO GAIN AN ADVANTAGE IN THE PENDING FM CUSTODY AND DYFS MATTERS.

IV. THERE EXISTS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUSTAIN THE FINDING THAT APPELLANT COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST RESPONDENT.

V. THE TRIAL COURT ERRED BY FAILING TO PERMIT DEFENDANT TO PROVIDE UNIMPEDED TESTIMONY FOR THE RECORD AS WELL AS CROSS EXAMINE PLAINTIFF TO DISCERN VALIDITY OF ALLEGATIONS.

We reject the first two points, finding insufficient merit to warrant discussion in a written opinion related to defendant's arguments that the judge should have either advised him of his rights or permitted an adjournment or continuance. R. 2:11-3(e)(1)(E). We would add only that defendant's first request for an adjournment or continuance was made when the hearing was more than halfway over; in those instances, defendant sought time to obtain a police report or secure the testimony of a witness regarding plaintiff's claims of a prior history domestic violence. This constituted an inadequate basis for a claim of surprise because the factual areas in question had been alluded to in the complaint and defendant had sufficient time prior to the hearing to gather the information and witnesses necessary to rebut plaintiff's testimony.

On the other hand, we find it necessary to vacate the FRO and remand for further proceedings because the judge: (1) failed to make clear findings that defendant acted with the purpose to harass or that the harassment found to have occurred was more than "ordinary domestic contretemps," Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995); (2) did not consider, as required by Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006), whether an FRO was required notwithstanding a finding of harassment; and (3) mistakenly deprived defendant of the right to cross-examine plaintiff.

I

To obtain an FRO pursuant to the Act, a plaintiff must first prove by a preponderance of the evidence that the defendant committed one of the predicate acts referred to in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. See Silver, supra, 387 N.J. Super. at 125-26. After hearing testimony about numerous incidents and statements made by defendant, the judge merely concluded -- without an expression as to which part of the harassment statute applied2 -- that harassment had occurred in what we discern to be three ways or on three occasions. First, the judge held: "I do believe that there was some harassment here, and it may have been provoked. You didn't have to dump the children off at the restaurant, number one." This related to testimony from plaintiff that defendant appeared with the children at her place of work, her family's pizzeria, and in the middle of the dining room loudly announced his and the children's presence. Second, the judge found that defendant "us[ed] bad language with her. There's no question about it." And third, the judge generally stated -- and we cannot discern whether this related to some other incident or the two already mentioned -- that "there was harassment here, some degree of harassment, and it was provoked by having this gentleman in the house, and also controlled. There's a control issue here."

Harassment requires proof that defendant acted "with purpose to harass." N.J.S.A. 2C:33-4. Certainly, a domestic violence claim based on harassment does not require a statement from the defendant that he or she acted with an intent to harass the plaintiff. "A finding of a purpose to harass may be inferred from the evidence presented," which may be informed by "[c]ommon sense and experience." State v. Hoffman, 149 N.J. 564, 577 (1997). Here, however, the judge made no finding that defendant acted with this requisite purpose, nor may the words or conduct referred to in the judge's findings be viewed as implicitly embodying a purpose to harass.

In addition, the words or conduct the judge found to have occurred were arguably insufficient to warrant entry of an FRO. For example, in Corrente, the defendant threatened "drastic measure[s]," and later disconnected the plaintiff's telephone service; we held that this communication and conduct could not be "characterized as alarming or seriously annoying." 281 N.J. Super. at 249. In another case, we drew the same conclusion where the defendant said to the plaintiff, "I'll bury you," Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995). And, where the defendant surreptitiously removed the plaintiff's belongings from their apartment and engaged in one occasion of shouting and door slamming, we likewise found no course of alarming conduct sufficient to constitute domestic violence. Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988). See also Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) (holding that a single act of trespass, unaccompanied by violence or a threat of violence, was insufficient to justify issuance of an FRO).

The judge's findings suggest only that defendant: dropped the children off at plaintiff's place of business in a loud and angry manner; called plaintiff vile names; and acted in a controlling fashion not otherwise defined. As noted, the judge made no finding that defendant uttered words or engaged in conduct with the purpose to harass but, even if such a finding had been made, it did not necessarily follow that a sufficient predicate act had been proven.

As then Judge (now Justice) Long stated for this court in Corrente, this type of conduct -- particularly during the course of matrimonial litigation -- "was plainly never contemplated by the Legislature when it addressed the serious social problem of domestic violence." 281 N.J. Super. at 250. Instead, "the invocation of the domestic violence law" in some cases, like Corrente, "trivialize[s] the plight of true victims of domestic violence and misuse[s] the legislative vehicle which was developed to protect them." Ibid.; see also Peranio, supra, 280 N.J. Super. at 56-57. In short, "[t]he domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps such as this." Corrente, supra, 281 N.J. Super. at 250. The judge here made no findings that would suggest the harassment she found to have occurred was something more significant than the type of domestic contretemps found insufficient to support an FRO, as in Corrente, Peranio and others.

II

The FRO must also be reversed because the judge did not expressly find restraints were necessary "to protect the victim from an immediate danger or to prevent further abuse," nor was such a conclusion implicit in the judge's holdings. Silver, supra, 387 N.J. Super. at 127; see also Kamen, supra, 322 N.J. Super. at 229. As explained by Judge Fall for the court in Silver, the finding of a predicate act, such as harassment, satisfies only the first step in a two-step process. 387 N.J. Super. at 125-26. Because "the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence retraining order," plaintiff was obligated to prove and the judge was required to find that restraints were necessary to "protect the victim from an immediate danger or to prevent further abuse." Id. at 126-27. Although there are certain acts of domestic violence that may bespeak or reveal a need for protection without a judge's express finding, when the claimed predicate act consists of harassment or other types of non-physical conduct, the judge is required to provide a principled analysis of why a restraining order is necessary to protect the victim from danger or further abuse. See N.J.S.A. 2C:25-29b (stating that in such proceedings, "the court shall grant any relief necessary to prevent further abuse") (emphasis added).

Because the judge made no such finding here, nor did the judge make findings from which we might discern such an implicit determination, the FRO cannot stand.

III

The record lastly reveals that the judge did not permit cross-examination.

Certainly, contrary to defendant's argument, the judge's handling of the examination of the witnesses was otherwise appropriate. The judge first questioned plaintiff3 and then defendant, following which she intermittently questioned both parties as she attempted to focus and understand the nature and sufficiency of plaintiff's claims and defendant's arguments in defense and mitigation of his conduct. Defendant complains that, in this manner, the judge failed to permit "unimpeded testimony." We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). But defendant is correct that the judge should have provided the parties with the opportunity to cross-examine, a circumstance that further militates in favor of a new trial in this matter. See J.D. v. M.D.F., 207 N.J. 458, 481 (2011); Peterson v. Peterson, 374 N.J. Super. 116, 124-26 (App. Div. 2005).

In finding a deprivation of due process when a domestic violence defendant was not permitted to cross-examine witnesses or to present witnesses, the Court explained in J.D. the importance of ensuring the full exercise of the traditional elements of due process in these matters:

Many litigants who come before our courts in domestic violence proceedings are unrepre-sented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.

[J.D., supra, 207 N.J. at 481.]

Although the judge here exhibited great patience and listened to the parties' extensive and at times unfocused testimony, she erred by failing to provide defendant with an opportunity to cross-examine his ex-wife.

The FRO is vacated, and the matter is remanded for a new final hearing. The TRO entered at the time the complaint was filed shall remain in effect pending disposition of the matter at the new final hearing. We do not retain jurisdiction.

1The content of the alleged thirty-three text messages was not provided to the trial judge.

2N.J.S.A. 2C:33-4(a) declares that harassment consists of the making or causing to be made, "with purpose to harass another," "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." N.J.S.A. 2C:33-4(c) declares that harassment consists of the engaging, "with purpose to harass another," "in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person."

3Actually, the judge briefly questioned defendant at the outset of the hearing, apparently but mistakenly assuming he was the complaining party.