L.F. v. A.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03944-11T3

L.F.,

Plaintiff-Respondent,

v.

A.S.,

Defendant-Appellant.

_________________________________________

April 28, 2014

Before Judges Yannotti, St. John and Leone.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1638-12.

A.S., appellant, argued the cause pro se.

Jill Horton-Miller argued the cause for respondent (Pearce Law, L.L.C., attorneys; Ms. Horton-Miller, on the brief).

PER CURIAM

Defendant appeals from the February 23, 2012 Final Restraining Order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the "Act"). The FRO adjudicated A.S. of having committed an act of domestic violence, harassment, contrary to N.J.S.A. 2C:33-4a, against plaintiff L.F. and restrained him from further contact with her. We affirm.

The record discloses the following facts and procedural history. The parties were involved in a dating relationship that ended in July 2011. On July 16, 2011, plaintiff applied for the first of two temporary restraining orders (TRO) against defendant. The complaint alleged that defendant had committed the predicate offenses of harassment and stalking, detailing the following conduct:

[Defendant] stalked the victim over the course of the past 3 days. The victim broke up with the actor on 7/14/11. [Defendant] refused to get out of [plaintiff]'s vehicle, then later responded to [plaintiff]'s house and rang doorbell repeatedly after [plaintiff] stated that she did not want to speak with [defendant]. [Defendant] then responded to [plaintiff]'s house at 0710 hrs. On 7/15/11, causing [plaintiff] alarm. On 7/16/11, [defendant] responded to [plaintiff]'s former pastor's house to discuss how the Lord wants [plaintiff] to get back with [defendant]. [Defendant] then followed [plaintiff] around the supermarket[.]

The TRO was granted and a hearing ensued on July 28, 2011. The Family Part judge concluded that plaintiff's allegations were not substantiated, and she entered an order of dismissal. In 2011, plaintiff also filed a criminal complaint against defendant alleging stalking and harassment.

Plaintiff filed a second TRO complaint on February 6, 2012, alleging that defendant "has stalked [plaintiff] since December of last year calling [her] and showing up at her bus stop when she returns home from work attempting to reconcile." The complaint noted that defendant "was told numerous times to stop contacting [plaintiff]." "Stalking" was the only predicate offense notated in the complaint form. The initial return date in early February was rescheduled because defendant had received oral notice but had not been served yet with the complaint. Defendant admitted he knew as early as February 8 that the rescheduled hearing would be on February 23, and that in conversations with the court staff he said that February 23 would be fine.

At the hearing on February 23, plaintiff was represented by counsel. After the parties entered their appearances, defendant again requested an adjournment stating, "My attorney basically asked me to ask you, if I can do a ready hold until 3:30?" No such written or telephone request was ever made to the court by any attorney representing defendant. In fact, as defendant conceded at oral argument before us, he had not retained an attorney because he did not have the money. After denying a ready hold and an adjournment, the judge stated, "Right. So if you don't have the money for the lawyer then you're going to go forward representing yourself, because the plaintiff is entitled to have her trial." Defendant responded, "Okay."

Only the parties testified. Plaintiff recounted the circumstances giving rise to her second application for a TRO. After the July 2011 Family Part proceedings, plaintiff "started getting a lot of hang[-]up calls in October." Plaintiff believed defendant was the person who made those calls because they "kept coming to my office number and also coming to my cell phone."

Also in October, plaintiff notified the Prosecutor's Office that she did not wish to pursue the criminal complaint against defendant. That case was dismissed on December 6, 2011. The following day, she received three telephone calls from defendant thanking her for not pursuing the criminal charges and indicating that he wanted to remain friends. Plaintiff responded that "it was over," and she did not want any further contact from him. She explained that the three calls were "unnerving" and she "just wanted to have this part of my life behind me and not be bothered anymore and just go on with my life."

On December 8, defendant telephoned again and plaintiff reiterated that defendant should discontinue communications with her. Nevertheless, defendant called on December 17. He repeated his wish to remain friends and also discussed insurance information concerning a prior car accident defendant had been involved in using plaintiff's vehicle. Plaintiff replied that she could not help him, and that he should deal directly with the insurance company.

In January 2012, plaintiff twice encountered defendant at her regular bus stop. She did not think these interactions were coincidental, as she had purposefully altered her transportation schedule after the parties' breakup. On January 28, plaintiff received two missed telephone calls at work from an unknown number. She returned the call and a woman answered, explaining that a gentleman had borrowed her phone to make the calls. Plaintiff asked for a description of the man, which matched defendant. Plaintiff stated that she was "afraid," and asked the woman not to permit any further calls from her phone.

Plaintiff indicated that these circumstances caused her to adjust her usual routine. She changed her work hours and transportation route to avoid the possibility of future encounters with defendant.

Defendant admitted that he called plaintiff on several occasions and also texted her twice. Defendant offered numerous excuses for contacting the plaintiff, however, the judge found his testimony to not be credible. The judge did find plaintiff's testimony to be credible.

At the conclusion of testimony, the judge rendered an oral decision. She noted initially that at the July 29, 2011 hearing, she admonished the defendant, "don't call her, don't text her, don't go to the bus stop . . . ." The judge found that even after these warnings, "you called her, you texted her, and you went to that bus stop." The judge determined that even though the court directed defendant not to call and plaintiff "told you to stop calling" and defendant told the court he would not call, he did continue to call.

The judge found that defendant made those calls "with the intent to annoy her, if not to alarm her," and that he engaged in a course of repeatedly committing acts "with the purpose to seriously annoy her." The judge also determined that even though the court ordered defendant to leave plaintiff alone that an FRO was appropriate "because I don't find that you're capable of controlling the behavior without that." The judge determined that an FRO was "necessary to protect the plaintiff from future acts of harassment from [the defendant]." The judge sua sponte amended the predicate act, without objection from defendant. Defendant does not challenge that amendment.

The judge then entered an FRO and it is from that order that defendant appeals.

In a pro se brief, defendant argues that the judge "made mistakes" and that plaintiff's testimony "was very much inconsistent during the proceedings." Those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Although not set forth in point headings, defendant also contends that the judge erred by denying his request for an adjournment and that he was entitled to an attorney.

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 (App. Div. 2011) (quoting 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 also 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.

In adopting the Act, the Legislature intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (quoting N.J.S.A. 2C:25-18). The term "victim of domestic violence" refers to persons protected by the Act and includes a person who has been subjected to domestic violence by a person "with whom the victim has had a dating relationship," as plaintiff is here. N.J.S.A. 2C:25-19(d).

"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 the predicate act of harassment, specifically that defendant "with purpose to harass another" engaged in a "course of alarming conduct or repeatedly committed acts with purpose to alarm or seriously annoy [another] person." N.J.S.A. 2C:33-4(c). "A finding of a purpose to harass may be inferred from the evidence." State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. McDougald, 120 N.J. 523, 566-67 (1990)). A judge may find prohibited conduct from an ambiguous incident based upon the parties' past history of domestic violence. Cesare, supra, 154 N.J. at 402.

However, the commission of one or more of the enumerated acts 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, supra, 280 N.J. Super. at 54. 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 set forth in N.J.S.A. 2C:25-19(a) 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 heard the testimony and listened to and observed the witnesses, then articulated her findings. We will not second-guess a trial 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, specifically harassment, 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 review 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)) cert. denied, U.S. , 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). A decision to deny an adjournment will not be disturbed on appeal unless a mistaken exercise 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, 216 N.J. 587 (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 then requested an adjournment because he had not retained an attorney, we are satisfied that the trial judge did not mistakenly exercise her discretion when she refused to grant another adjournment. Our conclusion is supported by the lack of a notice of appearance by counsel, or any communication whatsoever from defendant's purported counsel to the court. Our conclusion is further buttressed by defendant's acknowledgment that he did not have the resources to retain an attorney. The record does not demonstrate that defendant acted with reasonable diligence in obtaining counsel.

In sum, we are in accord with the trial judge that the evidence presented sufficient evidence of domestic violence. The record supports the court's finding that defendant committed a predicate act of harassment and the court's determination that an FRO was required to protect plaintiff from further

harassment. Moreover, defendant's due process rights were not violated by the adjournment denial.

Affirmed.