L.S.B. v. A.C.B., JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

L.S.B.,

Plaintiff-Respondent,

v.

A.C.B., JR.,

Defendant-Appellant.

_______________________________

April 11, 2014

Submitted March 26, 2014 Decided

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket Nos. FV-17-420-99 and FV-17-634-12.

A.C.B., Jr., appellant pro se.

Paul H. Scull, Jr., attorney for respondent.

PER CURIAM

Defendant appeals from a May 31, 2012 order that amended a final restraining order entered against him (the "amended FRO") under the Prevention of Domestic Violence Act (the "Act"), N.J.S.A. 2C:25-17 to -35. The amended FRO added several people as protected individuals and banned defendant from the town where plaintiff resides (the "Town"). Defendant also appeals from a June 28, 2012 order denying his motion for reconsideration of the decision to amend the FRO. Finally, defendant appeals from the court's July 5, 2012 order dismissing a domestic violence complaint he filed against plaintiff and vacating the temporary restraining order ("TRO") issued by the municipal court based on the allegations in the complaint. We now reverse the court's decision to amend the FRO and vacate the amended FRO issued therefrom; we reinstate the protections afforded to plaintiff under the original FRO issued in 1999 (the "original FRO"), and affirm the dismissal of defendant's complaint against plaintiff.

The parties divorced in 1999; plaintiff obtained the original FRO against defendant at that time, which afforded defendant bi-weekly visitation of the parties' two older children, born in 1987 and 1990. Since that time, plaintiff remarried, adopted a child, and became a grandmother when one of the older children she had with defendant had a child of her own. In 2012, plaintiff petitioned the court to amend the original FRO to add: (1) her new husband, (2) the now over-the-age of majority and presumably emancipated older children; (3) her adopted child; and (4) the grandchild. Plaintiff also sought to ban defendant from the Town where she and the proposed new class of protected individuals reside.

In May 2012, the Family Part judge assigned to hear plaintiff's petition conducted an evidentiary hearing in which both parties testified. According to plaintiff, "I know that [defendant]'s been visiting [in the Town]," and "I'm just tired of looking over my shoulder and I don't want [defendant] to think it's just okay to come around. I got a [grandchild], and I . . . don't want to take that chance." Defendant explained that he grew up in the Town in question, and his parents and friends continue to live there. He also testified that his visits to this Town are purely personal and he has no intentions of going near plaintiff. At the end of the hearing, the judge granted plaintiff's petition. The judge added these individuals as within the protected class of the original FRO and banned defendant from entering the Town unless he was visiting his parents.1

Defendant moved for reconsideration of the amended FRO and, on June 28, 2012, the judge took testimony from the older children, who were then approximately twenty-five and twenty- two years old. They expressed a desire for themselves and the grandchild to remain listed on the amended FRO as protected individuals. The older children did not file a domestic violence complaint or independently seek protection under the Act. At the conclusion of the hearing, the judge denied defendant's reconsideration motion.

On June 30, 2012, defendant filed a domestic violence complaint against plaintiff alleging harassment, and obtained a TRO against her. At the FRO hearing on July 5, 2012, defendant testified that, on June 30, 2012, plaintiff and the new husband drove to defendant's house, took pictures from their car, and when they saw him, "gave [him] the finger, and left." Although the judge chastised plaintiff and the new husband for driving by defendant's residence, he dismissed defendant's complaint and vacated the TRO, explaining that defendant failed to demonstrate that plaintiff harassed him.

On appeal, defendant argues there was an insufficient basis to amend the original 1999 FRO; he also claims he presented sufficient evidence to sustain his burden to obtain an FRO against plaintiff. Because we are reversing the court's order amending the FRO, we need not reach the numerous related contentions raised by defendant in his pro se brief.

We begin by outlining in general the governing legal principles related to Family Part bench trials and the issuance or modification of an FRO. Trial court fact-finding is "binding on appeal when supported by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The trial court sees witnesses firsthand and "has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (internal quotation marks omitted). We give additional deference to factual findings of the family courts because they have special expertise, ibid., and we do not second-guess the exercise of sound discretion, Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

When determining whether to grant an FRO, the judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). "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:25-19a has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126-27.

Under the second inquiry, there must also be a finding that "'relief [is] necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29b). The commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not, on its own, "automatically . . . warrant the issuance of a domestic violence [restraining] order." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). 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:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127.

A judge may modify an FRO pursuant to N.J.S.A. 2C:25-29d, which provides in part that

[u]pon good cause shown, any final order may be . . . modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.

The "complete record," includes "all pleadings and orders, the court file, and a complete transcript of the [FRO] hearing." Kanaszka v. Kunen, 313 N.J. Super. 600, 606 (App. Div. 1998). Here, the amended FRO judge did not enter the original FRO and he proceeded without reference to the complete record.

I.

We agree with defendant that there was insufficient evidence to enter the amended FRO. In amending the original 1999 FRO, the judge stated that

I'm going to . . . expand the [original FRO to include the new family members] . . . as I agree with [plaintiff] that it clearly is within the spirit and intent of the . . . original [FRO2] . . . , and [defendant having] no intention of having contact with them, it shouldn't be too much of a burden to [defendant].

. . . .

I'm going to expand the [original FRO] to prohibit [defendant's] presence in [the Town], except to the extent that [he is] visiting [his] parents. . . .

I think [entering the amended FRO] enforces the spirit and intent of the original [FRO].

Plaintiff failed to produce any credible evidence demonstrating that defendant committed a predicate act of domestic violence, as set forth in N.J.S.A. 2C:25-19, against her or the new family members since the entry of the original FRO. And the judge did not find that amending the original FRO, entered thirteen years before plaintiff's motion to modify, was necessary to protect plaintiff or the new family members from an immediate danger or to prevent further abuse. Silver, supra, 387 N.J. Super. at 126-27.

II.

We reject defendant's contention, however, that the judge erred by dismissing his complaint and vacating the TRO defendant obtained against plaintiff. Defendant alleged that plaintiff committed the predicate act of harassment pursuant to N.J.S.A. 2C:33-4, which states that a person commits harassment when, with purpose to harass another, that person:

a. Makes, or causes to be made, a communication . . . anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

"For purposes of subsection a., there need only be proof of a single such communication, as long as defendant's purpose in making it, or causing it to be made by another, was to harass" and "it was made in a manner likely to cause annoyance or alarm to the intended recipient." J.D., supra, 207 N.J. at 477. "[F]or purposes of subsection a., '[a]nnoyance means to disturb, irritate, or bother.'" Ibid. (quoting State v. Hoffman, 149 N.J. 564, 580 (1997)). "A violation of [subsection c.], by contrast, requires proof of a course of conduct. . . . [S]erious annoyance or alarm . . . means to weary, worry, trouble or offend." Id. at 478 (citation and internal quotation marks omitted). Defendant failed to produce any credible evidence to show that plaintiff harassed him under any of the subsections of this statute.

In dismissing defendant's complaint against plaintiff, the judge stated that

the undisputed facts in this case, . . . are that [plaintiff and the new husband] drove by [defendant's] property and took pictures. . . .

Was it designed to harass [defendant]? I don't think that proofs get there. Was it designed to act as self-help for [plaintiff and the new husband] to make sure they knew if [defendant] violate[s] existing [c]ourt [o]rders . . . ? Yes, I think they're telling me the truth.

. . . .

Clearly, a single incident like this, with no history of domestic violence from the - - directed by the - - from [plaintiff] to [defendant] given the history of this matter, does not equal harassment.

. . . .

Here there wasn't even any verbal communications between the parties, one to the other. There is a disputed allegation, there was a hand gesture directed by both [plaintiff and the new husband] at [defendant]. [Plaintiff] says she didn't see [defendant.] [The new husband] saw [defendant] at the end.

. . . It would appear . . . that some of [defendant's and his witnesses'] testimony was somewhat rehearsed, and that [they] all were careful to make sure [that] I heard the same version of it. But, there was so much divergent testimony between [those] witnesses. . . .

[W]hether or not there was actually the hand gesture, that's an amplification of what actually took place in order to make this case sound better, I have some questions about [that], sir, to be quite candid with you.

Finally, the judge did not find that entering an FRO against plaintiff was necessary to protect defendant from an immediate danger or to prevent further abuse. Thus, there was no error in dismissing defendant's complaint and vacating the TRO.

Affirmed in part and reversed in part.

1 On January 11, 2013, we modified the amended FRO to bar defendant from being within 1000 feet of plaintiff and the new family members pending this appeal.

2 The original FRO gave defendant visitation rights to the older children who were minors at the time, rather than barring all contact between them.