Ja. P v. Jo. P

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6074-10T4

Ja. P.,

Plaintiff-Appellant,

v.

Jo. P.,

Defendant-Respondent.

________________________________

April 3, 2012

Submitted February 28, 2012 - Decided

Before Judges Carchman and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13000252-12.

Law Offices of August J. Landi, attorney for appellant (August J. Landi, of counsel and on the brief).

John B. Brennan, Jr., attorney for respondent.

PER CURIAM

Plaintiff Ja. P. appeals from a Family Part order dismissing her complaint filed pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Plaintiff did not testify at the trial, but the salient facts were presented through the testimony of a friend to whom defendant Jo. P. had communicated the alleged threats that he directed toward plaintiff. In dismissing plaintiff's case against defendant, the trial judge determined that because plaintiff had not testified about being placed in fear by defendant's alleged threats to kill her, she had not established the requisite elements for a Final Restraining Order (FRO) under the Act. The judge then denied plaintiff's motion to reopen plaintiff's case to permit such testimony.

We reverse. We conclude that the interests of justice required the trial judge to permit plaintiff to reopen her case-in-chief and testify as to the impact of defendant's threats. We remand for a new trial.

These are the relevant facts. Plaintiff and defendant, the parents of three young children, were divorced by judgment of January 21, 2011. Pursuant to their judgment of divorce, plaintiff and defendant agreed to civil restraints, which were stipulated in a consent order. The restraints provide:

The parties herein agree to civil restraints wherein they agree that they will not communicate with one another other than via e-mail or text with regard to matters concerning the children's health, education and welfare. The parties will not enter the property of each other's residences or places of employment. If the parties are attending a school[-]related event or children's activity, they will do so while not communicating with one another and will keep distance between them. There will be no verbal contact between the parties. The Husband and Wife both agree that they will not disparage one another or each other's significant other[] and family members in front of the children.

At trial, plaintiff proffered one witness, K.B., a friend of both plaintiff and defendant, who related that on July 16, 2011, she met defendant at the AP Marina in Belmar. According to K.B., the following exchange took place.

As soon as I saw him, it was very welcoming, how are you. Gave me a big hug. I saw the children, you know, and it was very, very nice.

. . . .

After that, he very casually asked, hey, I have to ask you a question. Can you come here for a second[?] And I didn't see why not. And he brought me into the garage.

And it was like a light switch. He proceeded to, as soon as the door closed behind me, he proceeded to ask me, Your Honor please forgive my language.

. . . .

. . . So let me ask you, have you seen that fucken [sic] bitch[?] And I was like, you know, last summer I saw her once. The kids are friends and we were friends. He's like yeah, I know, my children, they told me.

And he said, from that point, you don't even know what that bitch has done. That fucken [sic] skank whore bitch has torn this family apart. If I see her, I'm going to punch her fucken [sic] jaw. And if she was laying [sic] there dying, I wouldn't call anyone until she was already dead.

Then he asked me if I knew Eric, which is her boyfriend. I said no. He said well, that guy's got it coming. If I see him out, I'm going to beat him, I'm going to fucken [sic] beat him to death.

And he said everyone thinks I'm kidding, but I'm not kidding. It's going to happen. And I said well, [Jo.], you know, I don't think that's a good idea. What about your kids. He's like, I don't care. I'm not thinking about the consequences. It's going to happen.

Defendant added, "well you can tell [plaintiff] what I fucken [sic] said."

Twelve days later, on July 28, 2011, K.B. called plaintiff "because I still wanted to get together and have the kids together. And I just told her that I had a run[-]in with [defendant,] and I needed to talk to her." K.B. refrained from disclosing the details because her "kids were there and the language was not appropriate," so she and plaintiff decided to meet the following night.

On July 29, 2011, K.B. met with plaintiff and told her "everything that happened." Immediately after K.B. recounted the details of defendant's remarks, plaintiff, K.B., and plaintiff's friend went to the police, and plaintiff obtained a temporary restraining order (TRO) against defendant. Prior to the final hearing, defendant left a message on his ex-mother-in-law's home phone, "threatening her and threatening repercussions when she appeared in [c]ourt today." The record does not disclose the contents of the message.

At the final hearing, plaintiff did not testify. At the close of plaintiff's case, defendant moved to dismiss pursuant to Rule 4:37-2(b).

The judge determined that because plaintiff failed to testify as to the predicate acts charged in the complaint, specifically terroristic threats and harassment,1 he would not issue the FRO, and he granted defendant's motion to dismiss. The judge explained:

[T]he problem I have here is that the plaintiff has rested. And if you look at the domestic violence statute, in particular, who is a victim of domestic violence, . . . [K.B.] is none of those people . . . . [Ja. P.] is somebody who would be protected by the Act.

However, the record does not have any evidence showing that she was in fear in any way, shape or form by these acts and by these comments.

In response to the court's finding that plaintiff failed to prove the predicate act of terroristic threats because "the record [did] not include any testimony from [plaintiff] indicating that she was . . . in fear," plaintiff's counsel argued that plaintiff's testimony was unnecessary because "[i]t's an objective standard . . . not a subjective standard here."

Plaintiff's counsel then asked the judge "to amend [the dismissal] to allow [plaintiff] to testify," stressing that "there was a prior restraining order here," and this was "a court of equity." The judge found that the record did not indicate anything about a prior restraining order2 and concluded that it was "too late" for plaintiff to testify. Although the judge found that an objective standard applied, that it was reasonable to infer that defendant's conduct would cause fear, and that plaintiff's witness was credible, the judge acknowledged the serious "ramifications of a[n] [FRO]" and determined that plaintiff's "strategic decision" not to testify rendered her unable to "ma[k]e the proofs."

Later that day, plaintiff filed an order to show cause and motion for reconsideration on short notice. Affirming his initial decision, the judge concluded:

[T]his is a civil family law proceeding [determined] under [Rule 4:37-2(b)], [and] under the Domestic Violence Act. And the testimony that I had was from [K.B.] who is a friend of the plaintiff's. She is not the plaintiff.

[Plaintiff's counsel] chose not to put the plaintiff on the stand. And on the motion, I granted it. And the reason is and the reason remains the same, I do not believe that the law permits a victim of domestic violence to not get on the stand and testify that they are a victim in some fashion.

Citing Cesare v. Cesare, 154 N.J. 394, 411 (1998), and State v. Milano, 167 N.J. Super. 318, 323 (Law Div. 1979), aff d, 172 N.J. Super. 361, 362-63 (App. Div.), certif. denied, 84 N.J. 421 (1980), the judge noted that, although he found that defendant made threats, he could not find that the threats caused plaintiff to have a reasonable fear of the threats, because "the [c]ourt could not take into account any history [of abuse or plaintiff's individual circumstances] in making an objective determination of a reasonable person's standard."

Additionally, alluding to J.D. v. M.D.F., 207 N.J. 458, 481 (2011), the judge determined that defendant had a due process right to cross-examine plaintiff, and he was denied that right because plaintiff chose not to testify. The judge stated, "I believe that strategic decision [not to testify] was in error because I think due process and the Constitution requires [sic] that the victim of, that [sic] is accusing somebody of domestic violence, must be subject to some degree of cross examination." Concluding that "the proof that was put before the [c]ourt before the motion to dismiss could not allow me to make an inference of an objectively reasonable person because I did not have the plaintiff's mindset" other than the TRO, the judge denied plaintiff's motions.

This appeal followed.

Two issues are apparent. The first is whether the judge properly granted relief under Rule 4:37-2(b), and then whether the judge should have permitted plaintiff to reopen her case-in-chief.

Rule 4:37-2(b) permits a dismissal where "upon the facts and upon the law the plaintiff has shown no right to relief." The motion shall be denied, however, "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid.; see also Verdicchio v. Ricca, 179 N.J. 1, 30-31 (2004). Dismissal is only appropriate when "no rational [factfinder] could draw from the evidence presented by plaintiff" that an essential element of the plaintiff's case is present. Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001).

We have serious doubts as to the judge's ruling that the proofs were insufficient to overcome a motion under Rule 4:37-2(b), that only plaintiff could provide the proofs necessary to establish her "fear" from the threats, or that the Act does not permit "a victim to not get on the stand and testify that they are a victim in some fashion." See Cesare, supra, 154 N.J. at 403 ("Although we agree that, under an objective standard, courts should not consider the victim's actual fear, courts must still consider a plaintiff's individual circumstances and background in determining whether a reasonable person in that situation would have believed the defendant's threat."). We need not determine those issues, however, as we conclude that the judge abused his discretion in denying plaintiff's motion to reopen her case so as to allow her to testify.

The intent 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; Cesare, supra, 154 N.J. at 399. The Act is remedial in nature and shall be construed liberally to achieve its purposes. Id. at 400.

The Supreme Court has recently reiterated this core principle and in commenting on the purpose and intention of the Act, said:

We have echoed the breadth of the Legislature's expressed intent by observing that "[o]ur law is particularly solicitous of victims of domestic violence." State v. Hoffman, 149 N.J. 564, 584 (1997). As we have noted, "there is no such thing as an act of domestic violence that is not serious." Brennan v. Orban, 145 N.J. 282, 298 (1996).

[J.D., supra, 207 N.J. at 473.]

Citing J.D., the judge here expressed concern that defendant was deprived of a right to cross-examine plaintiff. He denied plaintiff's initial motion to permit her to reopen her case and a subsequent motion for reconsideration to achieve the same purpose.

We recognize that a decision to grant a motion to reopen a case, as well as to grant reconsideration, resides within the discretion of the court. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002). In denying the motions, the judge relied on J.D. The facts of J.D. reveal that the judge in that case promised the defendant that a certain witness would be called and available for cross-examination but then precluded the individual from being called as a witness. The Court determined that this was a mistaken exercise of discretion that violated the defendant's due process rights. Id. at 481-82.

The concern expressed by the judge here is analogous to that raised in J.D.; however, by granting plaintiff's application to reopen, the judge would have afforded defendant the opportunity to cross-examine plaintiff and resolve any due process concerns that formed the basis of the judge's earlier denial of the FRO application. Granting plaintiff's motion would have also reflected an appropriate recognition of the protections afforded domestic violence victims, as well as defendant's due process rights. In sum, granting the motion would have afforded due process to defendant andreflected the recognized accommodation of domestic violence victims. We conclude that the judge erred in denying plaintiff's motion to reopen her case.

We reverse and remand for a new trial. We do not retain jurisdiction.

1 The hearing focused primarily on the issue of terroristic threats; the court made no findings specific to harassment.

2 During defendant's cross-examination of K.B., counsel referenced the prior consent order incorporating restraints.