F.G. v. A.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2804-11T3

F.G.,

Plaintiff-Respondent,

v.

A.G.,

Defendant-Appellant.

___________________________

March 7, 2013

Submitted January 24, 2013 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1044-12.

Glen F. Haley, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from the Family Part order issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (Act), after the trial judge found, by a preponderance of the evidence, that defendant committed the predicate acts of harassment and simple assault upon plaintiff and that there was a need for issuance of a final restraining order (FRO) to protect plaintiff from future acts of violence. On appeal, defendant contends he was deprived of due process when he was prevented from retaining counsel, especially because English is not his native tongue, the use of an interpreter encumbered his defense, and the evidence failed to support the decision the judge reached. We are not persuaded by any of defendant's arguments and affirm.

I.

Following the issuance of a temporary restraining order (TRO), the matter proceeded to trial where both parties appeared pro se, with neither party requesting the opportunity to retain counsel. In addition to both plaintiff and defendant testifying, M.O., a friend of plaintiff also testified.

The parties here are ex-spouses. According to plaintiff, on January 1, 2012, beginning around 3:00 a.m., defendant called her and sent messages to her. She left her home at 9:00 a.m. to attend church and as she entered her vehicle, defendant blocked her vehicle from exiting the area. He then approached her and proceeded to yell profanities at her and threatened to kill her. She exited her car, at which time defendant proceeded to punch her just below her left eye. Then, eight days later, while returning from a local store where she had purchased a drink, she saw defendant approach her "from the corner." Once again, he blocked her vehicle from moving with his own vehicle, yelling "I need to talk to you." She refused to speak to him. He then moved his car and plaintiff started driving towards her home, with defendant following her in his vehicle for a period of time.

Plaintiff also testified to prior acts of physical abuse and verbal insults from defendant occurring in October, 2011. Plaintiff stated defendant threatened to kill her, used verbal insults, and physically abused her. She relayed that there were additional incidents that occurred in 2009 and 2010 where defendant would harass her over monetary disputes. She testified she remained in fear of her life from defendant.

M.O. testified that on the morning of January 9, she was exiting a nutritional store when she observed plaintiff seated in her vehicle, which was being blocked by a pickup truck. She also observed a male screaming at plaintiff but could not understand what was being said.

Defendant testified on his own behalf. He acknowledged he approached plaintiff on January 1 to discuss the vehicle she was driving and to obtain the license plates due to cancellation of the insurance. He denied striking plaintiff. Rather, he testified that plaintiff attacked him and "all [he] wanted to do [was] . . . get her off [himself]." As to the encounter with plaintiff on January 9, he testified it was coincidental and that he ran into plaintiff on his way to the store when he was turning his vehicle around on the one-way street on which he resided. He stated that when he tried to talk to plaintiff, he got scared and proceeded to go home because she screamed "[p]olice, police." Additionally, defendant testified that he never tried to get money from plaintiff. Throughout his testimony, the court continuously directed him to respond to the particular question rather than veering off to testify about unrelated matters such as his children or the financial situation of the family.

Upon completion of the testimony, Judge Mark P. Ciarrocca orally placed his findings on the record, crediting the testimony of plaintiff and M.O., while concluding defendant's testimony lacked credibility. The court noted defendant's reluctance to answer questions directly and defendant's election to respond to questions with tangential testimony. The court stated: "[W]hen . . . asked about a certain date," defendant "gave very little testimony regarding that date. . . . I [did not] find his testimony to be at all credible." The court then found the predicate acts of assault, N.J.S.A. 2C:12-1, and harassment, N.J.S.A. 2C:33-4, had been committed and issued the FRO, concluding:

I find credible the plaintiff's testimony that the defendant . . . us[ed] a number of obscenities [during their argument] . . . indicating that he was going to harm her. And I find credible the plaintiff's testimony that the defendant punched her . . . in the left eye and that there was swelling below the left eye.

I also find credible the testimony that on January 9th, the plaintiff was getting something to drink at a local store and . . . on her way out, that her vehicle was blocked by the defendant. The defendant's version that it was just coincidental[,] [t]hat he was trying to leave[,] is not consistent with the rest of his version that he's been trying to get a hold of . . . the plaintiff.

I . . . also find credible the plaintiff's testimony that on prior occasions[,] that the defendant came to her . . . looking for money . . . . And that he pushed her and he struck her with a fist.

. . . .

And while much of their argument was domestic contretemps, I find credible the statement . . . by the plaintiff that the defendant threatened to do her harm. I find that this was made with the purpose to harass. And it was . . . likely to cause annoyance or alarm.

So I find that she has proven the predicative act of harassment. I also find credible her testimony that on January 1st, the defendant st[r]uck her just below her left eye. Again, she gave good detail about that. . . .

I find that she has proven, under 2C:12-1, that the defendant did attempt to cause[,] purposely, knowingly, and recklessly did cause bodily injury to another. . . .

. . . .

I find that without a restraining order, given the history of what I've heard from the prior incidents of 2010 and 2011; from the incident that occurred on January 1st; from the fact that the defendant, on January 9th[,] then went to block the plaintiff's vehicle; from the testimony of the defendant that there is involvement regarding their daughters and some issues regarding their daughters . . . I find that without a restraining order, there is a substantial likelihood that there will be a reoccurrence of domestic violence.

II.

In a non-jury case, we generally defer to findings of fact by the trial court, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We will not disturb these findings on appeal unless the trial judge's findings are "so wholly insupportable as to result in a denial of justice." Rova Farms, supra, 65 N.J. at 483-84 (internal quotation marks and citations omitted).

A judge considering a complaint for a domestic violence restraining order has a "two-fold" task: "[f]irst, 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"; and second, "whether a domestic violence restraining order is necessary to protect [a] plaintiff from immediate danger or further acts of domestic violence." Silver v. Silver, 387 N.J. Super. 112, 125-26, 128 (App. Div. 2006). "[T]the previous history of domestic violence between plaintiff and defendant including previous threats, harassment, and physical abuse," and "whether immediate danger to the person or property is present," are appropriate considerations in reaching a determination as to whether an FRO should be entered. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); see also N.J.S.A. 2C:25-29(a).

Here, the judge found defendant committed simple assault and harassment towards plaintiff, two offenses that constitute predicate acts under the Act. He also concluded that due to the prior history between the parties and plaintiff's "fear for her safety," issuance of a restraining order was necessary. Silver, supra, 387 N.J. Super. at 128. The trial judge's "credibility determinations are entitled to deference and those factual findings must be sustained as long as they are supported by sufficient, credible evidence in the record." State v. Yohnnson, 204 N.J. 43, 62 (2010). We discern no basis to depart from the trial judge's findings.

Likewise, defendant's claim that he was forced to proceed at the hearing without the benefit of counsel and without being advised of the significant disadvantages he faced by proceeding pro se is without merit. We recently addressed a litigant's due process right to representation in a domestic violence proceeding, D.N. v. K.M., ___ N.J. Super. ___ (App. Div. 2013). There, we held that "indigents mounting a defense or presenting allegations of domestic violence are not entitled to appointed counsel," noting that "the Act is remedial, not punitive, a difference that is significant" in the analysis as to whether the proceeding could result in a consequence of magnitude that would implicate the right to appointment of counsel. Id. slip op at 18. More importantly, here defendant did not request the appointment of assigned counsel or an adjournment of the proceedings in order to retain private counsel. Judge Ciarrocca personally addressed defendant, explaining the consequences of the issuance of an FRO, and when he asked defendant whether he was prepared to proceed, defendant responded in the affirmative:

THE COURT: . . . [A.G.], are you prepared to proceed today, sir?

[DEFENDANT]: Yes.

. . . .

THE COURT: . . . I want you to understand, as the defendant in this case, there [are] significant consequences that will come if this [c]ourt enters upon a restraining order. And I don't know what I'm going to do; I haven't heard any testimony yet. But if the [FRO] is entered, the [c]ourt can enter an order prohibiting you from having any contact with the plaintiff . . . or going to where she works or where she lives; your name would be included in the Domestic Violence Registry [and] that could affect your ability to get certain jobs; it could affect your ability to travel. I don't know, but it could.

The [c]ourt could enter a civil penalty of up to $500. You would be fingerprinted and you'd be prohibited from possessing any weapons. Do you understand that?

[DEFENDANT]: (In English) Okay.

[DEFENDANT]: (By the Interpreter) Yes.

THE COURT: All right. And you're prepared to proceed, correct?

[DEFENDANT]: Yes.

Further, unlike the defendant in Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005), defendant had the full opportunity to cross-examine both plaintiff and her witnesses, present his own witnesses, and to testify.

Finally, based upon our review of the transcript of the hearing, defendant expressed no confusion or difficulty in understanding the interpreter. Thus, the record does not support his contention that the use of the interpreter encumbered his ability to defend against the charges.

A