A.P. v. J.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.P.,

Plaintiff-Respondent,

v.

J.D.,

Defendant-Appellant.

____________________________________________

April 2, 2014

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-0533-13.

Michael E. Damico argued the cause for appellant (Damico, Del Sardo & Montanari, LLC, attorneys; Mr. Damico, on the brief).

Respondent has not filed a brief.

PER CURIAM

In this appeal, arising from a Family Part final restraining order (FRO), defendant J.D. challenges the sufficiency of the evidence, the analysis of the trial judge, the legal basis for the finding of the predicate act of criminal mischief, N.J.S.A. 2C:17-3, and the adequacy of the trial judge's findings of fact. We disagree with defendant's contentions and affirm.

I.

The record discloses the following facts and procedural history. Defendant and plaintiff A.P. are former spouses divorced by an amended final judgment of divorce (JOD) entered on March 29, 2011. One child, a son, was born of the marriage. The JOD incorporated a property settlement agreement (PSA), which included a provision for the sale of the marital residence located in Wayne. Pursuant to the PSA, plaintiff was granted residential custody of their son. Defendant had ceased residing in the home in early 2010, at which time plaintiff changed the locks and did not give defendant a key.

Prior to September 26, 2012, plaintiff filed four temporary restraining order (TRO) complaints against defendant. On February 4, 2010, a TRO was granted after plaintiff alleged that defendant attempted to forcibly enter the home and shouted profanities at her. On October 6, 2011, a second TRO was granted after plaintiff complained that defendant called her a "stupid bitch" and slammed a door on her finger.

On November 23, 2011, the Family Part amended the previous TRO after plaintiff complained that defendant destroyed property at their son's daycare center and sent a harassing text message. A hearing was held before the Family Part judge on December 21, 2011. The judge found that defendant's text message did not rise to the level of harassment, and therefore dismissed the complaint for lack of a predicate act of domestic violence.

On April 16, 2012, plaintiff filed a fourth TRO complaint arising from an incident in which defendant allegedly drove past her home yelling a threat at her. On May 4, the judge entered an order of dismissal upon plaintiff's request. In September 2012, plaintiff filed an application for an order to show cause, seeking an order permitting her to relocate permanently with the parties' then-five-year-old son to her parents' home in New York.

On the morning of September 6, 2012, after returning from vacation with her son, plaintiff entered her home briefly in order to use the bathroom. She walked up the front stairs into the bathroom, departed shortly afterwards by the same route, and collected her mail from the mailbox. Plaintiff did not observe any damage to her home at that time. On September 9, 2012, plaintiff returned to her home and, upon entering the front door, noticed that the steel-plated door to the second floor had been opened. Plaintiff saw T.K., a neighbor who lives across the street, outside walking his dog. She approached him, told him that her house had been broken into, and asked if he had noticed "anything different going on" around the home. T.K. informed her that he had seen defendant at the home a few days earlier. Plaintiff then called the police, and Wayne Township Police Department Officers Ryan Vallaro and Corey Stevens responded to the home.

They performed a walkthrough without plaintiff, and observed damage to the frame of a door inside the residence, and testified that it had been opened by force as evinced by damaged molding and "pry marks down by the door." Plaintiff then accompanied the officers on a second sweep of the home. She noticed that all of the first-floor windows were unlocked, and a screen from one of the kitchen windows had been removed. She also observed pictures "scattered around" the kitchen as well as paperwork related to her litigation with defendant placed differently from where she had left it. In her bedroom, plaintiff believed that her nightstand drawer had been opened because it was askew and "the bottom handle was lifted up." Upon completing the second walkthrough, plaintiff informed the officers that nothing had been stolen. Later, however, plaintiff realized that her diary was missing, but did not report the purported theft to the police.

Vallaro also spoke with the neighbor, T.K., who refused to give a written statement, telling the officer that he "did not want to be involved with anything." After the officers completed their investigation, plaintiff went to the police department to file for a restraining order. That application was denied, but on September 26 plaintiff filed a TRO complaint that initiated the action that is the subject of this appeal. Plaintiff described the facts and acts endangering her well-being as follows:

[Plaintiff] arrived home and noticed someone had entered her home damaging the French doors & an interior steel door. [Plaintiff] noticed that a screen door was missing. [Plaintiff] spoke to her neighbor who stated he saw [defendant] entering & leaving [plaintiff]'s home. . . . [Plaintiff] noticed all her windows were unlocked.

With respect to prior incidents, plaintiff remarked that defendant had previously threatened her, disparaged her via phone calls and text message, continually texted and called her referring to her by pejorative terms, grabbed and scratched her body and damaged her home. The complaint marked down the predicate acts of criminal mischief, burglary and harassment.

In October, the judge held a four-day hearing. Plaintiff testified, and called the neighbor, defendant and both police officers as witnesses. During the hearing, plaintiff offered as exhibits photographs taken on September 9, which showed damage to the interior doorframe, which plaintiff maintained was the result of the door being pried open. Plaintiff also stated that the French doors on the first floor had been pushed open. She further testified that she had been on vacation and had not permitted anyone to enter the home during that time.

Both police officers testified. Vallaro stated that the French doors were "able to be pulled open" without force and did not recall seeing any damage to them. Vallaro also testified, reading from the police report without objection, that T.K. told him that he had observed defendant exiting the home through the front door. Stevens testified that he searched the backyard and found a window screen underneath the deck. He also stated, without objection, that plaintiff informed him that the screen "should have been secured to the window." Asked on cross-examination if he was aware of other recent break-ins in that neighborhood, Stevens stated, "town-wide we are experiencing a lot of break-ins."

T.K. testified that he saw defendant on the front steps of the home in early September 2012, but did not remember the specific date. He recalled the encounter because he remembered asking defendant, "When are you going to cut your [expletive] grass?" T.K. also remembered that defendant said, in substance, that he had not seen his son. Though he again could not recall the exact day, T.K. recounted having informed plaintiff and the police about that earlier incident, which he estimated had occurred somewhere between two to four days afterwards.

The police incident report, prepared by Stevens and introduced into evidence at the hearing without objection, stated that "P.O. Vallaro was able to make contact with the neighbor who stated he observed [defendant] exit the home on 9/5/2012 around 1630 hours and asked him when he was going to clean the yard." However, the report also notes that a Lieutenant O'Sullivan, who did not testify, thereafter called T.K., "who is now indicating that [defendant] was seen on 09/04/2012 at 16[:]30 exiting the home."

Plaintiff testified that her desire for an FRO was unrelated to her pending relocation request, and that she was "afraid of him" and just "want[ed] to be left alone."

[Defendant is] always harassing me, he breaks into the house knowing that I live there with [my son] alone. I have no friends or family here. He knows that I'm alone by myself and he keeps edging things on. He just keeps pursuing and just not leaving me alone. He drives by the house. He sends pictures of me to other people that know of me.

Furthermore, on cross-examination, plaintiff stated that she sought the prior TRO applications because she was "[s]omewhat" fearful of defendant. She also acknowledged that defendant was still listed on the deed and mortgage to the home as of September 9, 2012.

Defendant stated that he was, in fact, at the home on September 4, 2012, but did not go inside, acknowledging that he was not permitted to do so. He explained his purpose for being there as having received an email from plaintiff on September 3 explaining that she and their son would no longer be residing in New Jersey. Defendant stated he passed by around 1:00 p.m. and saw that "nobody was in the house."

On November 13, 2012, the judge granted plaintiff's application for an FRO, concluding that the defendant had committed a predicate act of domestic violence and that an FRO was warranted under the circumstances. The judge first found that plaintiff proved by a preponderance of the evidence that defendant had committed the predicate act of criminal mischief. N.J.S.A. 2C:17-3. He noted that the break-in appeared to be a "custom burglary," since no valuables were removed and the only items disrupted inside the home were personal in nature, such as plaintiff's photos, court documents and journal. The judge also highlighted the neighbor's testimony that he had observed defendant at the home around the time of the break-in and specifically recalled using crude language in reference to defendant's lawn. Finally, the judge disbelieved defendant's testimony, finding no plausible explanation for his presence outside the home that day. These circumstances, concluded the judge, pointed to defendant as the person who forced open the interior steel door and damaged the doorframe.

I find that, that's what happened here. [Defendant] had to damage the frame and the door that was locked between floors, in order to get access to that portion of the house that he obviously wanted access to[.]

I find that the plaintiff has proven, by a preponderance of the evidence, all of the evidence in the case, that the defendant did exactly that. He went to those premises, got into the premises, and damaged that door and the frame in order to further his access to the premises.

Having thus found that defendant had committed a predicate act of domestic violence, the judge then considered whether an FRO was otherwise appropriate.

In order to do that, we have to look at a lot of different factors, I've considered them. The previous history of domestic violence is a factor in favor of it. The best interest of the victim in any trial, definitely a point in the direction of making this a final order. And the existence of immediate danger to personal property.

I try to think of - - I don't want to call this a half[-]baked idea that the defendant had to break into that house but a person that's capable of doing something like that is a danger. And I believe that the plaintiff in this case is entitled [t]o some relief and I am going to make this a final order.

Accordingly, the judge entered an FRO on November 13 barring defendant from plaintiff's residence and place of employment, and prohibiting any communication with her. The FRO also provided for visitation with their son by means of curbside pickups and drop-offs at the home of plaintiff's parents. It is from this order that defendant appeals.

Defendant argues that there was insufficient evidence to support the issuance of the FRO. He further contends that since, at the time of the damage to the door defendant still owned the home, as a matter of law defendant could not have damaged "the property of another." He also argues that the judge failed to make the necessary two-part analysis prior to issuing the FRO, in that the evidence did not support the prior history of domestic violence and an FRO was not necessary to protect the plaintiff from immediate danger or to prevent further abuse.

II.

Our review of a Family Part judge's findings is a narrow one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "In our review of a trial court's order entered following trial in a domestic violence matter, we grant substantial deference to the trial court's findings of fact and the legal conclusions based upon those findings." D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). In other words, we will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002)(quoting State v. Locurto, 157 N.J. 463, 471 (1999)), nor will we "disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). On the other hand, where our review addresses questions of law, a trial judge's findings "are not entitled to that same extent of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, was enacted in furtherance of New Jersey's "strong public policy against domestic violence." Cesare, supra, 154 N.J. at 400. Under the PDVA, an FRO may only be granted "after a finding or an admission is made that an act of domestic violence was committed." N.J.S.A. 2C:25-29(a); see also R. 5:7A(d). Domestic violence occurs when an adult or emancipated minor commits one or more of the enumerated acts upon a person covered by the act. N.J.S.A. 2C:25-19(a). Criminal mischief, as defined by N.J.S.A. 2C:17-3, is one of the predicate acts constituting domestic violence. N.J.S.A. 2C:25-19(a)(10). Under N.J.S.A. 2C:17-3(a)(1), a defendant is guilty of criminal mischief if he or she "[p]urposely or knowingly damages tangible property of another."

Defendant contends that since he was an owner of the home at the time of the break-in, he did not damage the "property of another" under the terms of the criminal mischief statute. We disagree. Here, the record demonstrates that the parties acquired the home during their marriage, and the PSA provides for its sale and equal division of any resulting profit or loss. Whether or not the parties owned the home as a tenancy by the entirety, the JOD converted the property by operation of law into a tenancy in common. See, e.g., Mueller v. Mueller, 95 N.J. Super. 244, 248 (App. Div. 1967); Sbarbaro v. Sbarbaro, 88 N.J. Eq. 101 (Ch. Div. 1917).

As we have previously explained, a tenant in common has an "undivided interest . . . that encompasses the entire property." Burbach v. Sussex Cnty. Mun. Utils. Auth., 318 N.J. Super. 228, 233 (App. Div. 1999). Each co-tenant "has a separate and distinct freehold title," and each holds his or her "title and interest independently of the others." Ibid. (quoting 4 Thompson, Real Property 1795 (1979)); see also Dorf v. Tuscarora Pipe Line Co., 48 N.J. Super. 26, 34-37 (App. Div. 1957); Ross v. Ross, 35 N.J. Super. 242, 246-47 (App. Div. 1955). Thus, it is clear that plaintiff and defendant each held a separate and distinct interest in the home.

Though N.J.S.A. 2C:17-3 itself does not define what constitutes "property of another," we conclude that the statute encompasses a circumstance where, as here, a person other than the defendant holds a proprietary interest in the damaged property. Cf.N.J.S.A.2C:17-1(f)(for purposes of the arson statute, "[p]roperty is that of another . . . if any one [sic] other than the actor has a possessory, or legal or equitable propriety interest therein"); N.J.S.A. 2C:20-1 (for purposes of theft and related offenses, "'property of another' includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property"). Accordingly, we conclude that defendant's actions resulted in damage to plaintiff's undivided interest in the home as a tenant in common, and thus the trial judge correctly determined that defendant had damaged "property of another" under N.J.S.A. 2C:17-3(a)(1).

Defendant argues that plaintiff did not prove, by a preponderance of the evidence, that he committed the predicate act of criminal mischief. Specifically, defendant contends that there was insufficient evidence showing that it was defendant who entered the home and damaged property therein. We disagree.

"[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. Under the preponderance-of-the-evidence standard, "'a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006)(quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). "The evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier[] of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience." In re Estate of Reininger, 388 N.J. Super 289, 298 (Ch. Div. 2006)(citing Joseph v. Passaic Hosp. Ass'n, 26 N.J. 557, 574 75 (1958)).

"A fact may be proved by both direct evidence and circumstantial evidence." Halvorsen v. Villamil, 429 N.J. Super. 568, 575 (App. Div. 2013)(citing State v. Phelps, 96 N.J. 500, 511 (1984)). "'Both direct and circumstantial evidence are equally acceptable forms of proof.'" Ibid. (quoting Newmark Shortino v. Buna, 427 N.J. Super. 285, 312 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013)).

Here, there was sufficient evidence, both direct and circumstantial, from which the judge could conclude that it was more likely than not that defendant was the perpetrator who entered the home and damaged the doorframe. First, T.K., the neighbor, testified to seeing defendant at the home during the time period in question. T.K. specifically recalled his verbal exchange with defendant on that occasion, which he estimated had occurred about two to four days prior to the police investigation on September 9. Defendant admitted during his testimony that he was at the home, albeit on September 4, but did not go inside. The judge discredited defendant's account, and we defer to that credibility determination.

There was additional circumstantial evidence to buttress the judge's conclusion. As the judge noted, the circumstances of the break-in pointed to a "custom burglary" in that the only items disturbed were personal photographs, litigation documents and plaintiff's diary. No valuables were removed from the house. Though plaintiff did not report her missing diary to the police, she was cross-examined by defense counsel on that point and the judge nevertheless found her testimony credible.

Defendant directs our attention to several purported inconsistencies regarding the witness accounts. He contends that T.K.'s estimated timeline is inexact and at odds with the dates recorded in the police report. According to defendant, if he had, in fact, been inside the home on either September 4 or 5, plaintiff surely would have noticed the damage on September 6 when she dropped by the home that morning. Defendant also points to an email he sent to plaintiff on September 6, which allegedly demonstrates that he could not possibly have arrived at the home before 4:30 p.m. Where, as here, "'the evidence is largely testimonial and involves questions of credibility,'" we give substantial deference to the trial judge who has the opportunity to hear, observe and evaluate witness testimony. Cesare, supra, 154 N.J. at 412. The inconsistencies now raised by defendant were before the trial judge. The judge discredited defendant's account while crediting the testimony of plaintiff and T.K., which constituted sufficient evidence that defendant entered the home and purposefully damaged property therein. We discern no basis for disturbing the judge's credibility determinations and factual findings.

Defendant contends that the trial judge erred by failing to articulate specific facts in support of his conclusion that an FRO was necessary to protect the victim. Defendant argues that the hearing testimony did not establish a history of domestic violence or abuse, considering none of plaintiff's four previous TRO complaints had resulted in an FRO, one complaint had been dismissed by the court for lack of evidence, and two of the TROs that had been granted were later dismissed voluntarily by plaintiff.

When determining whether to grant an FRO pursuant to the PDVA, a trial judge must engage in a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006); see also Cesare, supra, 154 N.J. at 400-05. "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:25-19(a) has occurred." Silver, supra, 387 N.J. Super. at 125. However, the occurrence of a predicate act does not, by itself, warrant the issuance of an FRO. Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Upon such a finding, the second inquiry "is whether the court should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126-27; see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011)(explaining that an FRO should not be issued without a finding by the court that "'relief is necessary to prevent further abuse'" ((quoting N.J.S.A. 2C:25-29(b)).

Although this determination "is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1)-(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127. The nonexclusive statutory factors include "[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse," the "existence of immediate danger to person or property," and the "best interests of the victim and any child." N.J.S.A. 2C:25-29(a)(1)-(2), (4).

Here, the trial judge explained that he considered the statutory factors, and found that the parties' previous history, the best interests of the victim and the existence of immediate danger to personal property warranted an FRO in this case. The judge identified the "long history of domestic violence allegations" between the parties, and expressed particular apprehension about defendant's willingness to break into the home. Such conduct, the judge explained, indicated that defendant was unpredictable and volatile and "a danger."

We conclude that the judge properly addressed both inquiries under Silver v. Silver, supra, and that his findings were supported by sufficient competent evidence in the record. Cesare, supra, 154 N.J. at 413. Under such circumstances, we will not second-guess a trial judge's findings of fact. See Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

In sum, we find no basis to disturb the judge's conclusion that defendant committed a predicate act of domestic violence and that an FRO was necessary to protect the victim from future harm.