C.J v. S.C.D

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2611-10T4

C.J.,

Plaintiff-Respondent,

v.

S.C.D.,

Defendant-Appellant.

___________________________________

March 29, 2012

Submitted March 12, 2012 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-638-11.

Reynolds & Scheffler, L.L.C., attorneys for appellant (Steven P. Scheffler, on the brief).

Respondent has not filed a brief.

PER CURIAM

In this unopposed appeal, defendant seeks review of a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.

The parties engaged in a dating relationship when plaintiff was nineteen years old and defendant was sixty years old. Defendant, who was married at the time, had been plaintiff's tae kwon do instructor. The relationship ended in 2009 after defendant's wife and plaintiff's parents learned that the parties dated each other. Thereafter, defendant called and left vulgar and harassing messages for plaintiff and her mother. Plaintiff eventually obtained an FRO against defendant, but it was reversed in 2010 because evidence did not support a finding that defendant's purpose at that time in communicating with plaintiff was to harass her.1

On August 10, 2010, one day after we filed our first opinion, defendant began a new series of communications with plaintiff, sending her a message stating, "I'm sure that you heard you l[o]st in court. There is no restraining [order] anymore." Plaintiff informed defendant that she wanted no contact with him and blocked his calls. Nonetheless, the next day, defendant sent plaintiff a Facebook request. A few days after that, defendant located plaintiff on an internet gaming website and sent her messages stating that he wanted to meet privately with plaintiff and her parents.

In October 2010, defendant began programming his phone calls to appear as if plaintiff were receiving a call from one of her parents. Plaintiff answered a call displaying her father's number, and defendant said, "We need to talk." On another occasion, a call appeared to be from plaintiff's mother, but when plaintiff answered, defendant asked, "[W]hat ever happened to I'll love you forever?" Another time, he said, "I still love you[,] baby. Are you going to talk to me?" At trial, defendant testified that he was contacting plaintiff to "clear the air" and "leave on a little better terms."

In October 2010, plaintiff obtained a second restraining order. She contended that defendant's communications constituted a predicate act of harassment, N.J.S.A. 2C:33-4a, and that an FRO was necessary because she feared him.

On December 23, 2010, an FRO hearing was conducted by the same judge who had handled the first FRO. The judge listened to testimony from the parties, determined that defendant harassed plaintiff, and issued the FRO to prevent future abuse. Defendant now appeals.

On appeal, defendant argues that the judge erred by denying his motion for recusal. Defendant contends that a reasonable person could have concluded that the judge was biased against defendant based on remarks that the judge made at the first FRO hearing. Defendant also argues that the judge erred by finding that defendant had committed the predicate act of harassment.

We begin by addressing defendant's contention that the judge was biased. At the first FRO hearing, the judge expressed strong feelings, based on his assessment of the evidence, that defendant's actions were "morally reprehensible" and "absolutely outrageous." The judge expressed his initial concern whether his "outrage" would influence his decision. The judge proceeded to hear the matter and the FRO was not reversed on that basis.

At the second FRO hearing on December 23, 2010, defendant requested for the first time that the judge recuse himself based on the remarks made at the prior FRO hearing. The judge initially indicated that he "might have been more receptive to disqualifying" himself if defendant had sought recusal before the day of the FRO hearing. He commented that it was two days before Christmas and no other judge was then available to conduct the hearing.

The judge then reflected further on the merits of the recusal motion and concluded that:

I think that I can make determinations with respect to credibility here objectively. Even though I made determinations in the past, even though I characterized [defendant's] conduct as morally reprehensible, I still feel that I can make a fair decision in the case. And as I said, if in fact this application were filed last week or last month my reaction might have been more receptive to it. I'm not sure I would have granted it even at that point, but I certainly would have been much more receptive to it at that point.[2]

Rule 1:12-2 provides that "[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefore, may seek that judge's disqualification." The judge may grant the recusal motion "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). Furthermore, "disposition of the motion is, at least in the first instance, entrusted to the 'sound discretion' of the trial judge whose recusal is sought." Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)); State v. McCabe, 201 N.J. 34, 45 (2010).

"It is not only unnecessary for a judge to withdraw from a case upon a mere suggestion that he is disqualified: it is improper for him to do so unless the alleged cause of recusal is known by him to exist or is shown to be true in fact." Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.) (citing Clawans v. Schakat, 49 N.J. Super. 415, 420-21 (App .Div.), certif. denied, 27 N.J. 156 (1958)), certif. denied, 107 N.J. 60, 61 (1986).3

In construing an analogous federal statute, Justice Kennedy has stated in a concurring opinion:

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. . . . Not establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.

[Liteky v. United States, 510 U.S. 540, 555-56, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474, 491 (1994) (Kennedy, J., concurring) (emphasis omitted).]

We recognize that this consideration of the issue offers valuable guidance here. "[I]nappropriate comments do not, by themselves, necessarily equate to bias."4 Panitch, supra, 339 N.J. Super. at 68. Nor would commenting on the facts always result in the need to recuse oneself. For instance, a judge may remark, when sentencing an individual, that a defendant's conduct during the commission of the crime might be reprehensible, but the comment is not a basis for recusal. The focus of a recusal application is whether the judicial remarks "display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, supra, 510 U.S. at 555-56, 114 S. Ct. at 1157, 127 L. Ed. 2d at 491.

We have considered the record and conclude that the judge did not err by not recusing himself. The judge ultimately determined that he could be fair and objective under the circumstances, and his prior comments, based on his familiarity with the evidence from the first trial, did not rise to the level of deep-seated antagonism sufficient to compel recusal. See ibid. The record reflects that the judge conducted the FRO hearing evenhandedly, carefully considered the merits of plaintiff's application seeking the FRO, and afforded defendant all the process that he was due.

Next, defendant argues that he was merely trying to "leave the relationship [with plaintiff] on better terms," and that the judge erred in finding that an act of harassment had occurred. We disagree.

Our review is limited. A judge's factual findings are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). The trial judge sees witnesses firsthand and 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. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). Furthermore, we give additional deference to the factual findings of Family Part judges because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

When determining whether to grant an FRO pursuant to the Act, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-28 (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:25-19a 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.

Here, plaintiff alleged that defendant had engaged in the predicate act of harassment pursuant to N.J.S.A. 2C:33-4, which provides in part that

a person commits a petty disorderly persons offense if, with 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[.]

In concluding that the FRO was necessary to prevent future abuse and that defendant had acted with a purpose to harass, the judge stated:

[Plaintiff] made it clear on three or four occasions, different occasions during the course of that initial contact [on August 10, 2010,] that she did not wish to have any more contact with [defendant]. . . . [I]t was obvious to [defendant] that [plaintiff] had blocked his communications on the internet and he then continued to communicate with her through the [gaming] web site . . . and she again advised him that she did not want to have any communications with him . . . . And then after that, after receiving those instructions[,] he then contacted some other web site where phone calls could be placed to [plaintiff] indicating that her father was calling her and on another occasion her mother was calling her. And he admits that on the second call where he programmed the call so as to indicate to the recipient that her father was on the phone that the message was . . . "Hey, I still love you, Baby,"

. . . .

The judge concluded:

[T]here is a point that's reached where [plaintiff] made it abundantly clear that she did not want to have any more contact with [defendant] . . . and he in fact continued to have contact with her. And I do not accept the proposition that the communications that occurred in September and October were for the purposes of mending things with her parents. I think at that point[,] once she made it abundantly clear to him over the web site . . . she didn't want to communicate with him anymore, . . . he continued to do so. That was in my opinion repeated and obsessive contact which was in my judgment for the purpose of annoying and alarming her.

The judge further stated:

I am going to make an observation . . . that in this courtroom I have had the opportunity to observe [defendant's] demeanor, [and] the way in which [defendant was] staring at [plaintiff] when she was on the witness stand, [his] shaking of [his] head, et cetera, while she was testifying. I concluded . . . that [defendant's] purpose in doing that was to attempt to intimidate [plaintiff] in this courtroom.

The judge's findings were thorough and sufficient, and have an adequate, credible basis in the record. Given those findings, the judge correctly concluded that defendant's purpose was to harass.

1 C.J. v. S.D., No. A-0419-09 (App. Div. August 9, 2010).

2 We note that the availability of another judge is not a basis to deny a recusal motion. Under the facts of this case, recusal was unwarranted; however, if it were, the judge could have continued the restraints and rescheduled the FRO hearing before a new judge, or he could have imposed sanctions for raising the issue at the last minute.

3 We note that Canon 3C(1) of the Code of Judicial Conduct provides that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." However, a party seeking recusal need not "prove actual prejudice on the part of the court to establish an appearance of impropriety; an objectively reasonable belief that the proceedings were unfair is sufficient." DeNike v. Cupo, 196 N.J. 502, 517 (2008) (internal quotation marks omitted). Thus, the appropriate standard is whether "a reasonable, fully informed person [would] have doubts about the judge's impartiality." Ibid.

4 Compare State v. Leverette, 64 N.J. 569, 571 (1974) (no disqualification where trial judge expressed displeasure with defense counsel who failed to appear for five successive calendar calls); State v. J.J., 397 N.J. Super. 91, 103 (App. Div. 2007) appeal dismissed, 196 N.J. 459 (2008) (no disqualification although trial judge's comments were "sometimes stern"); and Panitch, supra, 339 N.J. Super. at 68 (alterations in original) (no disqualification where Family Part judge stated during conference call, referring to plaintiff, "I'll put the [expletive deleted] guy in jail," ordered plaintiff to "produce the [expletive deleted] documentation," and threatened to call the senior partner of law firm employing plaintiff); with State v. Perez, 356 N.J. Super. 527, 532-33 (App. Div. 2003) (recusal warranted where trial judge's comments "lumped [defendant] together with an identifiable minority against whom the judge was expressing anger, and . . . suggested that the judge's lack of belief in the validity of defendant's request [for a translator] was based, at least in part, on the supposed improper conduct of the minority group to which he belonged"); and State v. Utsch, 184 N.J. Super. 575, 581 (App. Div. 1982) (recusal warranted where defendant's attorney made "unwarranted personal attack" on municipal court judge, who was justified in recusing himself).