C.G v. M.G

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1165-14T2

C.G.,

Plaintiff-Respondent,

v.

M.G.,

Defendant-Appellant.

__________________________

February 4, 2016

Before Judges Koblitz and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0363-15.

M.G., appellant pro se.

Respondent C.G. has not filed a brief.

PER CURIAM

Defendant wife M.G., a former police officer, appeals from the Family Part's October 8, 2014 entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, after her husband C.G., a police officer for more than twenty years, filed a domestic violence complaint against her alleging harassment, N.J.S.A. 2C:33-4. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On the morning of the court proceedings, the trial judge informed the litigants that they were not constitutionally entitled to appointed counsel. The judge advised the parties, however, that when the calendar was called, either party could request an adjournment to seek counsel and the judge would provide the requesting party a reasonable opportunity to obtain counsel.

The judge also informed the litigants that the entry of a final restraining order carries serious consequences including fingerprinting, a firearms-possession prohibition, and a restriction on certain employment. He told them that issues such as visitation and support may be decided and that a violation of an FRO carries the possibility of imprisonment. Defendant did not seek an adjournment.

The parties were married in 2000 and had three boys. They were going through a divorce at the time of this incident. The Division of Child Protection and Permanency (DCPP) was involved with the family due to defendant's alleged mistreatment of the children. DCPP was alerted to the problem by one of the children's therapist. Although defendant was ordered to engage in psychological and psychiatric evaluations, she did not comply. By court order, defendant, who was not living with the family, was permitted two hours of weekly visitation with the children, arranged and supervised by DCPP or DCPP's designee.

On October 2, 2014, defendant began calling and texting plaintiff, seeking to speak with the children and have him supervise electronic visitation via Skype.1 She made seventy-two phone calls to plaintiff's home phone between 8:00 p.m. and 11:08 p.m. She also called plaintiff's cell phone thirty times after 8:00 p.m. and sent him numerous text messages that afternoon. Plaintiff testified that defendant had exhibited similar behavior in the past; yelling, screaming, and generally displaying a need for total control. He testified that although defendant had serious psychiatric problems, she was not currently in therapy. Although denied by defendant, plaintiff also testified that defendant owned a firearm. He testified that he was scared by both defendant's behavior and her threats to tell the newspaper that he was an abuser so he would lose his job.

Plaintiff testified to another example of defendant's "explosive" personality: "The day that [DCPP] came, she started banging her head on the concrete wall in the garage after they left. I don t know what she's capable of doing." Plaintiff testified that he could not sleep as a result of the harassing phone calls and texts and that "[t]he calls weren't stopping." He also stated that in the past she threatened to hit him with a cutting board.

In her testimony, defendant minimized her behavior, claiming that she could not reach DCPP, the agency could have approved plaintiff as a supervisor, and therefore it was reasonable for her to seek him out to facilitate her contact with the children.

The trial judge found plaintiff credible. The judge also determined that an FRO was necessary for the safety of both plaintiff and the children in light of defendant's disregard for the order entered in the protective services litigation. Only after the judge made his findings did defendant ask for an attorney.

On appeal, defendant argues that her behavior did not meet the statutory definition of domestic violence pursuant to N.J.S.A. 2C:25-19(a). Secondly, she claims that the trial judge failed to provide her with due process by failing to inform her of the serious consequences of an FRO, her right to have attorney representation, or her right to request an adjournment to consult with counsel. Her second claim flies in the face of the record and will not be discussed in this opinion.2 R. 2:11-3(e)(1)(E).

Our review of a trial judge's "fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. The judge sees witnesses first-hand 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)). We give additional deference to the factual findings of family court judges because they have special expertise, and we do not second-guess their exercise of sound discretion. See ibid.; Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Where our review addresses questions of law, however, a "judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).

When determining whether to grant an FRO pursuant to the PDVA, the judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). N.J.S.A. 2C:33-4(c) defines harassment as engaging "in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." After listening to both parties, the trial judge found that the hugely excessive number of phone calls and text messages to plaintiff, all contrary to the court order directing her to contact DCPP to arrange visitation, constituted harassment. That defendant may have possessed a mixed purpose, to contact her children as well as to annoy or alarm her husband, does not negate a finding of harassment. See J.D. v. M.D.F., 207 N.J. 458, 487-88 (2011) (rejecting the theory that "in evaluating claims of domestic violence, an individual can have only one motive or intent").

The judge must construe any such acts in light of the parties' history to better "understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); see N.J.S.A. 2C:25-29(a)(1). If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the facts 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." J.D., supra, 207 N.J. at 475-76 (quoting Silver, supra, 387 N.J. Super. at 127). The judge performed this analysis and determined that an FRO was needed to protect plaintiff and the children in these circumstances.

Affirmed.

1 Skype is application software that permits its users to communicate through the use of video phone calls over the Internet. See Skype, About Skype, https://www.skype.com/en/about/.

2 Although plaintiff did not file a responding brief, he did order the transcript of the judge's opening remarks, in which the judge gave the warnings and opportunity for an adjournment to seek counsel discussed above. Thus, defendant's counsel did not have access to these remarks when her brief was written.