L.A.D. v. S.C.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

L.A.D.,

Plaintiff-Respondent,

v.

S.C.D.,

Defendant-Appellant.

___________________________________

November 2, 2016

Argued June 21, 2016 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-3404-14.

Erik E. Sardi a argued the cause for appellant (Lite DePalma Greenberg, LLC, attorneys; Bruce D. Greenberg, of counsel; Mr. Sardi a, on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant S.C.D. (Sally)1 appeals from a final restraining order (FRO) obtained by L.A.D. (Liam), the father of her child, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.

I.

In determining whether to issue an FRO under the PDVA, the court must perform a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-26 (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:25-19[(a)] has occurred." Id. at 125. Second, "upon a finding of the commission of a predicate act of domestic violence," the court must determine whether it "should enter a restraining order that provides protection for the victim." Id. at 126.

II.

The parties have a litigation history that includes a significant number of temporary restraining orders each has obtained against the other and then dismissed. The FRO here was entered based upon an allegation and finding of criminal mischief, a predicate act enumerated in N.J.S.A. 2C:25-19(a).

Liam owns a 99-cent store and parked his truck nearby at approximately 10:00 a.m. on June 23, 2014. He testified Sally came to his store and told him "she was going to bust bust [his] windows." He did not believe her. Liam testified that, approximately three to five minutes after she made this threat, one of his employees told him, "Hey, man, she just broke all your windows." Liam presented a video that showed the damage to his truck. Liam stated he called Sally and she said, "You're motherfucking right I busted your windows."

Liam testified that, a couple days later, all four tires on his truck were flattened. The transcript reflects that a video was played in the courtroom that recorded a conversation between Liam and a bystander in which the bystander implicated Sally for the incident. Neither the video nor a transcript of the video was marked into evidence and it is unclear whether the description of the events and conversation on the video is complete or incomplete. Liam testified that Sally was continuing to come to his store and follow him around. He confronted her, asking "why she busted [his] tires." According to Liam, Sally responded, "I'm tired of you playing with my feelings and emotions," and then said she would pay for the tires.

Liam's front tire was flattened again on June 30, 2014. He did not see Sally do that and did not have a conversation with her in which she admitted flattening the tire. The trial judge declined to watch a video Liam had to show the flattened tire. Liam also alleged Sally threw two bricks through his store window but did not see her do it and did not produce the witness he claimed had seen her throw the bricks.

Liam testified regarding an incident that occurred the prior year that he did witness. He stated he was driving when Sally "pulled up on the side of [him], took a handful of pennies, just threw them, it . . . hit [his] car up, put dents all on [his] car."

Liam had obtained TROs against Sally in the past but dismissed each before obtaining an FRO. He stated he was proceeding this time because "it's getting out of hand," and explained

I'm trying to not come to court like this. [Sally] brung me to court a total of 25 times, I think. And I I think this restraining order would stop all that. And she constantly worried about what I'm doing. Never worried about what she doing. She's always making a scene. I've got about 30 videos here, with her in front of my store, yelling, shouting. Early in the morning, she comes to my house yelling and shouting.

Sally denied going to Liam's store on June 23 and threatening to break his windows. She testified she did not break his windows or flatten his tires on either June 25 or 30; did not throw a brick through his window or throw pennies at Liam when he was driving by. She produced no other witnesses.

Noting the factual dispute, the trial judge asked Liam if he had a videotape that was date and time stamped to show Sally was in his store between 1 and 2 o'clock on the afternoon his windows were broken. Liam stated he did not know how to date stamp the videotapes. The trial judge adjourned the trial until the afternoon to allow Liam to produce a witness and asked him to queue up the videos he had of June 23, 2014.

Kareem Baxter testified he was a good friend and employee of Liam. He recalled June 23, 2014 as "the day [he] had to clean up the glass around the truck." He testified that, on that day, Sally came into the store and stormed out, got into her car, proceeded to pull off and then circled back. She yelled, "I'm going to fix you. And I'm going to smash your windows." Baxter testified someone later came into the store and said, "Somebody busted windows to the truck." Sally did not choose to cross-examine Baxter.

The trial judge renewed his request that Liam show a video that recorded either of the threats. A videotape was played for approximately thirty seconds that apparently did not meet this requirement because Liam stated, "I think I got my days mixed up" and the judge stated, "Sir, this is what I asked you to do when we were taking that hour break. Unless you can show me that video right now, we're going to proceed to conclusion." Liam then stated, "I think I erased it." No other videotape was presented in court.

The trial judge proceeded to make his findings. He noted the testimony from the parties was directly contradictory. He found Liam "very truthful in terms of what he saw and what he didn't see." The judge stated he was "somewhat bothered" by the absence of a video to corroborate the allegations, but also found Baxter to be "very candid." He found the credible testimony showed by a preponderance of the evidence that Sally made a threat to smash the windows, the windows were smashed and it was reasonable to draw the inference that Sally was the one who broke the windows.

Having found Liam proved the predicate act, the judge then turned to the question whether an FRO was necessary. The judge stated,

Given the long history of domestic violence between these parties, and even given the video that you did show me of of screaming and yelling to this extent that I couldn t even understand what was being said, I think that a final restraining order is necessary. The history is there. The event occurred. And a final restraining order is necessary.

In her appeal, Sally argues the FRO must be reversed because: (1) the trial court failed to mark into evidence or provide a verbatim record of "videos it relied upon in ordering the FRO" and (2) Liam's "subsequent use of the FRO as justification to violate custody orders warrants disturbing the Law Division's reliance on directly contradictory testimony by plaintiff's sole witness, without which there is insufficient evidence to demonstrative domestic violence."2 We are unpersuaded by these arguments.

We "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J.394, 413 (1998)). Deference is particularly appropriate when the evidence is testimonial and involves credibility issues because the judge who observes the witnesses and hears the testimony has a perspective the reviewing court does not enjoy. Pascale v. Pascale, 113 N.J.20, 33 (1988). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J.at 104, (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.596, 605 (2007)).

We first address Sally's challenge to the sufficiency of the evidence to support the issuance of the FRO. The trial judge here correctly identified the crux of this case as a credibility issue. He pressed Liam to produce a videotape of the threats Sally was alleged to have made. However, it was not necessary for Liam to produce a videotape to prove his allegations by a preponderance of the evidence. Having found both Liam and Baxter credible, the judge was justified in finding the predicate act was proven. The trial judge's conclusion has sufficient support in the record and is therefore entitled to our deference.

Nonetheless, Sally argues the FRO must be reversed because the trial judge failed to mark into evidence videos he "relied upon in ordering the FRO." This argument is raised for the first time on appeal and is therefore subject to review for plain error. R.2:10-2. The trial judge noted his misgivings about Liam's inability to produce a corroborating videotape. The only reference to the video that was apparently viewed for approximately thirty seconds was that it contained a lot of indecipherable yelling and screaming. It was but one factor mentioned by the judge in determining an FRO was appropriate, used to supplement the primary reason for the necessity, which was the long history of domestic violence complaints that preceded this FRO. We are satisfied that this error did not have the clear capacity to bring about an unjust result here.

Affirmed.

1 We use initials and pseudonyms to protect the privacy of the parties.

2 Sally's allegation that Liam misused the FRO after its issuance is not properly before us.