V.D. v. K.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

V.D.,

Plaintiff-Respondent,

v.

K.O.,

Defendant-Appellant.

________________________________________________

March 14, 2014

Submitted November 6, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-699-13.

Christopher C. Roberts, attorney for appellant.

Lowenstein Sandler, L.L.P., attorneys for respondent (Robert D. Towey, of counsel; Matthew D. Stockwell, on the brief).

PER CURIAM

Defendant, K.O., appeals from a final restraining order (FRO) under the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35, entered on October 11, 2012, on behalf of plaintiff, V.D. For the reasons that follow, we affirm.

The record shows that plaintiff obtained a temporary restraining order (TRO) on September 6, 2012, based on allegations of terroristic threats, N.J.S.A. 2C:12-3, and harassment, N.J.S.A. 2C:33-4. The TRO alleged domestic violence due to a September 4, 2012 incident. The past history section of the complaint listed four prior domestic violence TROs plaintiff had obtained against defendant, which were later dismissed.

At the September 20, 2012 scheduled trial, the judge adjourned the matter at plaintiff's request until October 11, 2012, for plaintiff to obtain counsel. At that time, the judge advised defendant that if he wished to obtain an attorney, he must do so prior to the new date as the case would be tried or dismissed that day.

On October 11, 2012, defendant arrived at the hearing without an attorney and requested an adjournment for his counsel to be present. Defendant claimed that he had retained counsel, but he and his attorney decided to wait until the hearing date to see if plaintiff would proceed before the attorney put in his appearance. The judge refused defendant's request for an adjournment, but gave him an hour to contact his attorney. After an hour elapsed, no attorney had arrived on defendant's behalf, and neither defendant nor the court had been able to contact defendant's attorney. The hearing then proceeded with defendant representing himself.

At the trial, plaintiff testified that she and defendant had been in a five-year romantic relationship, which ended in November 2011. The couple had twin daughters, who were born in February 2012. Since their birth, defendant had little contact with his daughters and failed to pay child support. A recent DNA test confirmed that defendant was the father of the twins.

According to plaintiff's testimony, on September 4, 2012, defendant contacted her by phone and called her a "welfare bitch" and said that he was going to "get" her and the twins and that she was "fucked after today." Plaintiff hung up on defendant and was "scared," "afraid," and began to cry as a result of defendant's statements. She expressed fear that he would find out where she lived and, because of his "hatred towards" her, would kill her and the twins. Defendant had received a notification regarding child support obligations requiring him to appear at the child support office on September 5, 2012, which plaintiff believed prompted this phone call.

Plaintiff further testified that defendant had a history of violence against her, which had caused her to file several domestic violence complaints against him. Plaintiff reported that during her pregnancy, defendant had verbally threatened her because he wanted her to abort the twins. On August 16, 2011, plaintiff attested, defendant choked her and pushed her head against the headrest in a car while they were at a red light. Defendant stated that he would kill plaintiff, at which point she exited the vehicle and he sped off. Plaintiff filed a TRO against defendant after this incident, but did not pursue an FRO because defendant agreed to attend anger management.

In November 2011, when the couple was still residing together, plaintiff testified that she was awoken by a smell and saw defendant cleaning a rifle. Defendant then pointed the rifle at her and stated that he could kill her and get away with it. She did not report this incident to the police, but did move out of defendant's apartment.

On December 2, 2011, plaintiff recounted that the couple got into a verbal argument. Defendant also grabbed plaintiff by her hair and "mushed" her into the window. She then called 911, and the police responded. As defendant was exiting the car, he stated "you're not getting a dime from me; I'll kill you and those babies first." Thereafter, plaintiff obtained a TRO, which was later dismissed. Police seized five guns from defendant's residence.

In defendant's testimony, he denied most of plaintiff's allegations. Defendant denied calling plaintiff a "welfare bitch" or making any threatening statements about "getting her." Defendant reported that he filed a harassment complaint against plaintiff because he had to attend court constantly for unjustified TRO hearings.

Defendant also denied the veracity of plaintiff's allegations of his past violence toward her. Rather, defendant claimed that plaintiff was the aggressor and often acted erratically. He vehemently denied that he ever pointed a gun at plaintiff. He did acknowledge that he agreed to attend anger management, and that he owned guns.

At the close of the trial, the judge determined that sufficient credible evidence existed showing that an act of domestic violence occurred on September 4, 2012. The judge found plaintiff credible and defendant incredible. The judge concluded that "because of the previous incidents between . . . the parties, and because of the fear expressed by [plaintiff] in this matter, a final restraining order [was] necessary to prevent a reoccurrence of this incident and in order to protect . . . the victim." This appeal followed.

On appeal, defendant argues that the record does not support a finding of harassment or terroristic threats. We disagree.

Our standard of review in domestic violence matters is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be not reasonably supported by the record and thus "'clearly mistaken'" or so "'wide of the mark'" as to result in a denial of justice. C.M.F. v. R.G.F., 418 N.J. Super 396, 401-02 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We must accord considerable weight to the trial judge's findings of credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.

"Domestic violence" means an occurrence of one or more of the fourteen specific criminal acts inflicted upon a person protected by the Act. N.J.S.A. 2C:25-19(a). Here, the judge found domestic violence based on defendant's threats. He did not specify the particular predicate act although the complaint alleged both harassment and terroristic threats. Based on the record, we infer the judge found the predicate act of harassment, specifically that defendant "with purpose to harass another" made a communication in a "manner likely to cause annoyance or alarm[.]" N.J.S.A. 2C:33-4(a). "A finding of a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997). A judge may find prohibited conduct from an ambiguous incident based upon the parties' past history of violence. Cesare, supra, 154 N.J. at 402. The record supports a finding that defendant's communication on September 4, 2012, was harassment under N.J.S.A. 2C:33-4(a).

The record also supports a finding of the predicate act of terroristic threats, which occurs if a person:

(a) . . . threatens to commit any crime of violence with the purpose to terrorize another . . . ;

(b) . . . threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

[N.J.S.A. 2C:12-3.]

"Proof of terroristic threats must be measured by an objective standard." Cesare, supra, 154 N.J. at 402. "The pertinent requirements are whether: (1) the defendant in fact threatened the plaintiff; (2) the defendant intended to so threaten the plaintiff; and (3) a reasonable person would have believed the threat." Ibid. (citing State v. Smith, 262 N.J. Super. 487, 516 (App. Div.), certif. denied, 134 N.J. 476 (1993)). Utilizing "an objective standard, courts should not consider the victim's actual fear, [but] 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." Id. at 403. Based on this objective standard, we are convinced that the record supports a finding that defendant's September 4, 2012 phone call to plaintiff contained terroristic threats. N.J.S.A. 2C:12-3.

The commission of one or more of the enumerated acts, however, does not automatically require the issuance of an FRO. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The court must also take into account other factors, including the prior history of domestic violence between the parties and the existence of immediate danger. N.J.S.A. 2C:25-29(a); see also Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Thus, in considering a complaint for domestic violence, a judge 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 . . . 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, 125-28 (App. Div. 2006).

Here, the trial judge listened to and observed the witnesses, then he determined that an FRO was necessary to protect plaintiff. We will not second-guess a Family Part judge's fact-findings. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). If adequately supported by the record, we must defer to the findings of the trial judge, who is in a much better position to determine whether the evidence presented proved both the predicate offense and the need for a restraining order. Cesare, supra, 154 N.J. at 413.

Applying the circumscribed review standard here, we accept the trial court's findings, as they are supported by substantial credible evidence in the record. Accordingly, we find no basis to disturb the judge's conclusion in accordance with Silver, supra, 387 N.J. Super. at 125-26, that defendant committed an act of domestic violence and that plaintiff needed the protection of an FRO.

Defendant also argues that his due process rights were violated by the judge's refusal to adjourn the FRO hearing so that he could obtain counsel. Again, we disagree.

We view the grant or denial of an adjournment under an abuse of discretion standard. State v. D'Orsi, 113 N.J. Super 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). Such a request "'requires a balancing process informed by an intensely fact-sensitive inquiry.'" State v. Miller, 216 N.J. 40, 46 (2013) (quoting State v. Hayes, 205 N.J. 522, 538 (2011). A decision to deny an adjournment will not be disturbed on appeal unless a misapplication of discretion is demonstrated. Id. at 65.

Due process mandates that litigants have "a meaningful opportunity to defend against a complaint in domestic violence matters, which would include the opportunity to seek legal representation, if requested." D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013) (citing Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006)), certif. denied, ___ N.J. ___ (2014). The protection of a defendant's due process rights in the domestic violence context requires a fact-sensitive analysis. Ibid.

"[T]he right to retain counsel of one's own choice is not absolute[.]" State v. McLaughlin, 310 N.J. Super. 242, 258 (App. Div.), certif. denied, 156 N.J. 381 (1998). "[A] defendant must act with reasonable diligence when exercising the right to choose his or her own counsel." Id. at 259. "If a defendant fails to act with reasonable diligence in securing counsel, the trial court has the power to 'do what is reasonably necessary to meet the situation.'" Ibid. (citation omitted).

The Act expressly commands a trial court to proceed to a hearing in a summary manner in domestic violence cases within ten days of the filing of a complaint, N.J.S.A. 2C:25-29(a), in order to "'promptly and appropriately offer protection to victims of domestic violence.'" Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997) (quoting Sperling v. Teplitsky, 294 N.J. Super. 312, 318 (Ch. Div. 1996)). In providing this protection, "the court's response must be swift because any delay may pose serious and irreversible consequences to the victim." Id. at 399-400. Even so, "'the ten-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time.'" H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003) (citation omitted).

Under the circumstances here, where one adjournment had already occurred, defendant received ample notice of the new hearing date, and he requested an adjournment because he and his attorney decided, without consulting with the court, not to enter the attorney's appearance until they were sure plaintiff would proceed, we are satisfied that the trial judge did not mistakenly exercise his discretion when he refused to grant another adjournment. Our conclusion is supported by the trial judge's emphatic statements to defendant at the initial hearing to secure counsel for the October 2012 date, and the lack of a notice of appearance by counsel or any communication whatsoever from defendant's counsel to the court. The record does not demonstrate that defendant acted with reasonable diligence in obtaining counsel by unilaterally deciding that his attorney should not appear at the scheduled trial date. See McLaughlin, supra, 310 N.J. Super. at 259.

Finally, defendant argues that his due process rights were violated by the plaintiff's testimony about prior incidents of domestic violence not identified in the complaint. Defendant asserts that he did not have sufficient notice that these incidents were to be considered at the hearing, and that they should not have been considered because they were already subject to final disposition. We disagree.

In determining whether domestic violence has occurred, we evaluate the acts alleged "in light of the previous history of violence between the parties including previous threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present." Peranio, supra, 280 N.J. Super. at 54 (citing N.J.S.A. 2C:25-29(a)(1) and (2)). "[I]t is frequently the case that the trial court will attempt to elicit a fuller picture of the circumstances" than that provided by the plaintiff in his or her complaint in order "to comply with [this] statutory command[.]" J.D. v. M.D.F., 207 N.J. 458, 479 (2011). The use of prior history "reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened." Peranio, supra, 280 N.J. Super. at 54.

Courts need not prohibit the expansion of the record beyond the allegations of the complaint. Nonetheless, "the trial court must ensure that [the] defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare." J.D., supra, 207 N.J. at 480. A defendant's due process rights can be violated where a court refuses to grant an adjournment after a plaintiff alleges an incident of domestic violence not listed in the complaint, and relied on by the court in granting the FRO. H.E.S., supra, 175 N.J. at 324-25.

Here, plaintiff's complaint listed four separate domestic violence docket numbers, which referred to the August 2011 and December 2011 incidents. Defendant was put on fair notice that the incidents provided in those prior domestic violence complaints could be raised. At the hearing, defendant did not express surprise or confusion about the incidents to which plaintiff testified. The domestic violence complaints were not dismissed on their merits; rather, they were dismissed for failure to prosecute. Therefore, they were not barred. See J.K. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998) (precluding relitigation where prior TROs were dismissed on the merits after hearings).

We recognize that the complaint did not provide defendant any notice that the December 2011 gun incident would be considered as past history. But, defendant did not request an adjournment regarding this incident or suggest that he needed time to investigate or bring in witnesses. He simply stated that the incident never happened. Even if the trial judge should not have allowed testimony on this issue, when viewed in light of the other testimony that the judge found credible, we do not perceive that defendant was prejudiced or that the result would have been different if the evidence was not allowed. Thus, any error resulting in the admission or consideration of this incident was harmless error under Rule 2:10-2. See State v. R.B., 183 N.J. 308, 330 (2005) (defining the harmless error doctrine).

In sum, we are in accord with the trial judge that the evidence presented sufficient evidence of domestic violence. The record supports the predicate acts of harassment and terroristic threats and the necessity of an FRO to protect plaintiff. Moreover, defendant's due process rights were not violated by the adjournment denial or the use of past incidents of domestic violence.