M.K.B. v. J.R.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1967-13T4

M.K.B.,

Plaintiff-Appellant,

v.

J.R.B.,

Defendant-Respondent.

_________________________________________

J.R.B.,

Plaintiff-Respondent,

v.

M.K.B.,

Defendant-Appellant.

__________________________________________

February 23, 2015

Submitted1 January 12, 2015 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket Nos. FV-08-464-14 and FV-08-455-14.

Adinolfi and Lieberman, P.A., attorneys for appellant (Ronald G. Lieberman, of counsel and on the briefs).

J.R.B., respondent pro se (Richard B. Rotz,2 on the briefs).

PER CURIAM

These appeals, emanating from the issuance of two separate temporary restraining orders (TROs), have been consolidated for the purpose of our opinion.

I.

M.K.B. (Marcy)3 and J.R.B. (Joseph) were married in 2001 and were living together at the time of the incident that gave rise to this litigation. Both were retired; Marcy was seventy, Joseph was sixty-eight. In December 2012, Joseph had surgery for a liver transplant. In February 2013, after returning from the hospital, Joseph began to surreptitiously record his conversations with Marcy. Although the parties both testified that they were experiencing marital discord, there was no prior history of domestic violence. Marcy claimed to love Joseph and was not considering divorce. Joseph, however, retained counsel in October 20124 for the purpose of filing a complaint for divorce.

On the morning of October 28, 2013, Marcy was in her bedroom on the phone with her sister when Joseph came to her door and said, "Somebody's here to see you." When Marcy did not immediately respond, Joseph said, "Somebody's here to serve you divorce papers and if you don't come out, they're going to send the State troopers in." Joseph then opened the door and a man entered Marcy's bedroom and served her with divorce papers. The man then left the house and Joseph returned downstairs.

Marcy then heard Joseph playing a recording of her voice. She went downstairs and approached Joseph, who was sitting in a recliner. When she realized Joseph had been recording her, she asked to hear the recording. Joseph laughed at her. Marcy then reached for the recorder and grabbed Joseph's wrist, scratching him with her fingernails before pulling the recorder away from him.

Marcy ran back upstairs with the recorder. Joseph followed her up and asked for the recorder. Marcy said she threw it out of a window. Joseph searched outside but could not find the recorder. He then returned upstairs to further question Marcy about it.

Later, Joseph left the home and stopped to speak with a police officer who was directing traffic to "get some advice." After speaking with Joseph, that officer relayed the information to his headquarters. Officers Conti and McNeeney then responded to the home. After observing Joseph's injuries and interviewing both parties, Joseph was told that he had a right to obtain a TRO. Joseph declined. In spite of Joseph's statement to the police that he did not want to do anything to hurt Marcy, Officer Conti testified that "[b]ased on the Attorney General's guidelines for domestic violence [Marcy's arrest was] mandatory."

Marcy was arrested and charged with simple assault. N.J.S.A. 2C:12-1(a)(1). After she was processed and released, she was driven back to her home by the police. Although Joseph declined a TRO when Officers Conti and McNeeney were at his home, he apparently changed his mind and decided late that afternoon to apply for a TRO at the courthouse in Woodbury.

Marcy slept at home that night, apparently without incident. On the following day, October 29, 2013, Joseph filed an amended TRO, adding a claim that he suffered "mental abuse, [which] has been going on for ten months, ever since I had the transplant and it's just non-stop. . . . [I]t was constant verbal hollering." Around six p.m., Joseph knocked on Marcy's bedroom door and asked her to move her car. When she stepped outside, she saw three police cars outside of her home. One officer served her with the amended TRO5 and informed her that she had twenty minutes to leave the home.

On October 30, 2013, Marcy filed for and obtained a TRO against Joseph for harassment and assault on October 28 and 29, 2013. She claimed that Joseph kicked her as she was trying to wrestle the recorder from him.

The two requests for final restraining orders (FROs) were consolidated and tried together. Officer Conti testified and introduced photographs6 of Joseph's injured hand. Joseph testified that his son gave him an iPad, and he began to record Marcy covertly after his liver transplant. Joseph introduced the recording of Marcy he made secretly in February 2013 that precipitated the incident.

Joseph initially claimed that he did not have the strength to follow Marcy upstairs after she took the recorder. On cross examination, however, Joseph admitted that he followed Marcy up the stairs, went back downstairs to look for the recorder outside, and then went back upstairs to question her further. Marcy testified that she had been in love with Joseph for thirty years, and did not want a divorce. When Joseph played the recording of her voice, she reached for it but grabbed Joseph's arm when he kicked her. She claimed that she did not intend to grab his arm.

The judge found no history of domestic violence between the parties, and whatever occurred previously was "marital or domestic contretemps." As to Joseph's complaint, the judge found that Marcy committed an assault when she "put her hands on his wrist and stuck him with her nails." Noting that Joseph was still recovering from transplant surgery and was on various medications, the judge concluded that his injuries were "exasperated" and "more extensive than would have been suffered if he wasn't taking medication and hadn't been in such a frail state." Relying on the photos of Joseph's injuries, the judge found this "one act of assault was so egregious that it warrants a Restraining Order . . . ."

The judge also found that Joseph was in fear of Marcy as a result of this incident because it was "certainly not something that he had experienced or that had occurred in the household before." The judge further found that "[b]ecause of his medical condition and his frail state . . . there's a need for him to be protected in the future. He's still recovering and in a frail state, [and] cannot be subject to any type of even pushing or shoving, in light of his medical condition and warrants the protection of a Final Restraining Order."

Despite Joseph's eventual admission that he followed Marcy up the stairs, the judge found that Joseph did not "run after [Marcy] up the steps to get the recorder." The judge concluded that Joseph "is in a weak state, he's in a frail state. . . . [H]e was not capable of kicking [Marcy] . . . [b]ut I also find his testimony to be credible that he did not kick [Marcy], as she described."

As to Marcy's complaint alleging assault and harassment, the judge discredited her version of events, finding that she gave conflicting testimony as to how she grabbed the recorder from Joseph

That there's been no testimony, and the Court finds that when she was served with the Warrant . . . [t]hat she did not at that time provide the version of events that she now describes, of being assaulted by [Joseph], that she was kicked by him[.]

. . . .

The Court notes that she specifically indicated that she was not hurt. She did not testify to any sensation of pain so, by way of the element of an assault, even according to her own testimony, she wasn't assaulted.

But in this case, the Court doesn't find even an offensive touching. I don't find that [Joseph] kicked her, as she described.

. . . .

Regarding the Complaints, for the reasons as set forth in the Court Order,[7]the Court does not find that [Joseph] committed acts of harassment or predicate acts of assault or harassment on October 28 or October 29, 2013, against [Marcy].

The judge also found that Marcy's credibility was undermined because she did not seek a TRO until October 30, 2013.

Two orders were entered on November 19, 2013, granting Joseph's FRO and dismissing Marcy's complaint. Marcy appeals from both orders. In challenging the dismissal of her complaint, Marcy claims

a. in domestic violence matters, trial judges should be active not passive participants and it is reversible error for the trial judge to fail to invoke N.J.R.E.611 and N.J.R.E.614 in a final restraining order hearing.

b. defendant initiated the incident and thus failed to establish a defense to assault.

c. (not raised below). it was reversible error for the trial judge to fail to explore any [E]ffects on defendant he suffered by virtue of his cognitive dysfunction diagnosed on February, 2013, or eight months before the incident.

In challenging the issuance of the FRO to Joseph, Marcy argues

a. in domestic violence matters, trial judges should be active not passive participants and it is reversible error for the trial judge to fail to invoke N.J.R.E.611 and N.J.R.E.614 in a final restraining order hearing.

b. the public policy of this state should not permit a plaintiff to successfully assert a cause of action for domestic violence when he is the provocateur of the underlying incident.

1. plaintiff's action was the proximate cause of the October 28, 2013 incident.

2. [THE TRIAL] JUDGE did not find that defendant acted purposefully, knowingly, or recklessly against plaintiff.

c. there cannot be a finding of fear by plaintiff under N.J.S.A.2C:25-29a or silver v. silver, 387 N.J. Super.112, 127 (app. div. 2006) when the plaintiff voluntarily stayed in the home overnight alone with the defendant after the entry of a temporary restraining order, and the trial judge believes the victim's fear of future acts is merely a temporary situation.

d. (not raised below). the mental status of the plaintiff who suffered from cognitive dysfunction eight months before the incident should have been explored by the trial judge over the objections of plaintiff's attorney.

II.

The scope of our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Because of the family courts' special jurisdiction and expertise in family matters, we accord particular deference to family court fact-finding. Cesare, supra, 154 N.J. at 413. That review is less constricted when the "focus is not on credibility but alleged error in the trial judge's evaluation of the underlying facts and the implication[s] to be drawn therefrom." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). We owe no deference to the trial court's interpretation of the law. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010).

The Prevention of Domestic Violence Act (PDVA) defines "domestic violence" to mean the infliction of one or more of an enumerated list of crimes upon a protected person. N.J.S.A. 2C:25-19. Before an FRO can be issued, a court must conduct a two-step inquiry. 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 v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006) (citing N.J.S.A. 2C:25-29(a)). Second, upon finding the commission of a predicate act, the court must "'consider the previous history of domestic violence between the parties including threats, harassment and physical abuse, N.J.S.A. 2C:25-29(a)(1), and the existence of immediate danger to person or property, N.J.S.A. 2C:25-29(a)(2).'" Id. at 123 (quoting Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999)).

As to the first prong, the trial judge found that Joseph proved that Marcy assaulted him "when [Marcy] forcefully grabbed his hand, his right hand . . . in an effort to retrieve or grab a tape recorder out of his hands[.]"

Simple assault is committed when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a).

The trial judge indicated that Joseph's injuries were "purposely caused [by Marcy], due to the force and the extent of the injuries on [Joseph's] hand." We do not agree that the facts here support a finding that Marcy intended to injure Joseph. It is undisputed that Marcy's intent in approaching Joseph was to take the recorder from him and there is no indication that she intended to injure him. As the judge found, "the injuries occurred when she grabbed him to retrieve the recorder."

That being said, it is also undisputed that Joseph was injured during the struggle for the recorder when his arm and hand were scratched by Marcy's nails. "Not much is required to show bodily injury. For example, the stinging sensation caused by a slap is adequate to support an assault." N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997) (citing State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988)). Even assuming for the sake of discussion that a defendant's reckless, non-intentional conduct can satisfy the first prong of Silver, that would not end the analysis. As Judge Fall explained in Silver, "the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order." Silver, supra, 387 N.J. Super. at 126-27.

When making a determination as to the second prong of Silver, 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) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. "[O]mitting this added inquiry opens the door to potential abuse of the important purposes that the [PDVA] is designed to serve and threatens to 'trivialize the plight of true victims' in the process." J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995)).

A factor that must be considered when making the second-prong determination, especially in a close case such as this one, is whether there is a history of domestic violence between the parties. "A history of domestic violence may serve to give content to otherwise ambiguous behavior and support entry of a restraining order." Id. at 483.

While the trial judge acknowledged that there was no history of domestic violence between the parties, and that they had been living together with "minimal interaction" between them, she concluded that an FRO was warranted based on her finding that this incident represented an escalation of prior domestic contretemps.

In reaching this conclusion, the court failed to acknowledge two critical factors. Marcy was alone in her room speaking on the phone with her sister when Joseph choreographed two incidents that were obviously designed to upset her. Joseph allowed a process server into Marcy's bedroom to serve her with divorce papers, and then played a surreptitiously recorded conversation of her. Moreover, the court never considered whether this admittedly8 orchestrated incident was designed to provoke Marcy and give Joseph an advantage in the matrimonial action.9

In Murray v. Murray, 267 N.J. Super. 406, 410 (App. Div. 1993), we expressed concern as to "the serious policy implications of permitting [unsupported] allegations . . . to be branded as domestic violence and used by either spouse to secure rulings on critical issues such as support, exclusion from marital residence and property disposition, particularly when aware that a matrimonial action is pending or about to begin." Family Part judges must be aware of the "potential for unfair advantage" in the misuse of domestic violence complaints when there is ongoing matrimonial litigation. See Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995).

In a twelve-year marriage with no history of threats, abuse or domestic violence, Marcy's conduct here was not only aberrational but was prompted by Joseph's taunting behavior. The judge's failure to even acknowledge let alone consider Joseph's behavior undermines her conclusion that Joseph feared Marcy and that an FRO was warranted.

We also note that when the police first responded to the home and told Joseph he could have a TRO, he refused. It was not until later that afternoon that Joseph went to the courthouse to obtain a TRO. While the court attached significance to Marcy's delay in obtaining a TRO, it did not apply the same scrutiny to Joseph's initial refusal to obtain a TRO and his subsequent decision to apply for the TRO.

As to Marcy's appeal of the dismissal of her complaint, we find insufficient evidence in the record to justify disturbing the court's decision that she failed to establish the predicate acts of assault and harassment.

We affirm the dismissal of Marcy's complaint, vacate the FRO entered on behalf of Joseph, and dismiss his complaint.

1 Although these appeals were initially scheduled for oral argument, M.K.B. withdrew her request and both parties agreed to rely on their briefs.

2 After Mr. Rotz filed a brief on behalf of J.R.B., he withdrew as counsel and J.R.B. proceeded pro se.

3 We employ pseudonyms for ease of reference.

4 Joseph's counsel at the hearing on the final restraining order also represented him on the matrimonial matter.

5 The initial TRO, which was never served, is not included in Marcy's appendix.

6 Black and white photocopies of two of the photographs are included in appellant's appendix but are of such poor quality that they are of no value.

7 There are no reasons set forth in the court's orders. On the order dismissing plaintiff's complaint, a box is merely checked that reads, "The Court having determined upon the appearance of both parties that the plaintiff's allegation of [DV] has not been substantiated."

8 Joseph testified that he turned on the recording of Marcy's voice when he heard her coming into the room and knew playing it would "upset her."

9 When the judge dismissed Marcy's assault allegations, she failed to consider her allegation of harassment and whether Joseph's admitted provocation including the manner in which he caused Marcy to be served with the divorce complaint followed with playing her voice on the recorder was done with the intent to annoy or alarm her.