M.H. v. R.C.

 

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0649-05-T30649-05T3

M.H.,

Plaintiff-Respondent,

v.

R.C.,

Defendant-Appellant.

_____________________________________

 

Submitted April 5, 2006 - Decided May 24, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, FV-05-000124-06.

Zarwin, Baum, Devito, Kaplan, Schaer & Toddy, attorneys for appellant (Joseph M. Toddy, on the brief).

Stefankiewicz & Barnes, attorneys for respondent (David A. Stefankiewicz, of counsel and on the brief).

PER CURIAM

Defendant appeals the grant of a final restraining order (FRO) issued by the court on August 24, 2005, in connection with a domestic violence complaint. The complaint alleged defendant committed acts of harassment on August 6 and 14, 2005. The judge concluded plaintiff failed to prove defendant committed acts of domestic violence on the dates alleged in the complaint. Nonetheless, the court entered an FRO because it found defendant was "responsible for propping up those newspapers in the vicinity of the hot water heater" on another occasion. We reverse.

Defendant and plaintiff had an ongoing dating relationship for twenty-five years. The parties also lived together on and off during those years. When plaintiff sought the temporary restraining order (TRO) on August 15, 2005, they were no longer living together, but they worked at the same bar located next door to plaintiff's apartment. They did not work the same shift, but plaintiff relieved defendant from his shift once a week. In her complaint, plaintiff alleged that on August 6, 2005, around 5:00 p.m., defendant harassed her, threatened to turn her in to the IRS, told her he was going to get her, and threatened to burn her house down. She also alleged that on August 14, 2005, defendant was in her yard attempting to monitor her. In the history section of the complaint, plaintiff alleged defendant had tried to strangle her in the past and that there had been many instances of physical and verbal abuse. A TRO was issued, which, among other provisions, prohibited defendant from having any contact with plaintiff at her home or place of employment.

A hearing on the issuance of an FRO was conducted in the Law Division, Family Part, on August 24, 2005. Neither party was represented by counsel at this hearing. Plaintiff testified she and defendant broke up in the beginning of the year and that defendant moved out around January 12, 2005. She told the judge that since the breakup, she was afraid to go to work, especially if defendant had been drinking, and that he cursed at her in front of bar customers and apparently attempted to get them to "gang against [her]." She testified defendant threatened to burn her house down and that this had been going on since January. When the judge specifically asked her when did defendant threaten to burn the house down, she responded, "[t]he whole time he was there before he moved out." With respect to the incidents referenced in the complaint, the following colloquy occurred between plaintiff and the court:

THE COURT: On the 6th of August, your complaint says that he was calling you names at work, is that right?

M.H.: Yes.

THE COURT: Okay.

M.H.: He was very drunk when I went in. As a matter of fact, friends of his, that he pals around with, had his keys.

THE COURT: Okay.

M.H.: And it just went on and on and on for like two hours, him demanding a drink, going up to the owner, trying to get everybody in it. I had a full bar. I was really upset. He was cursing me, threatening me.

THE COURT: How did he threaten you?

M.H.: He threatened me he's going to turn me into the IRS. I'm going to get it. You and the little Jew that you're with, both of yous (sic) are going to get it. You got one coming.

As for the circumstances surrounding the events of August 14, 2005, plaintiff stated that defendant was behind her yard on a street that looks like an alley. Plaintiff testified defendant was just there all of the time and "makes his presence known." She explained defendant was not there long because he was on his way to a mutual friend's boat, which was docked behind her house in a nearby marina. Plaintiff also testified that sometime in February, she found newspapers stacked up against her water heater. Plaintiff indicated she rarely went into the room where the heater was located and that the papers were dated December 2004. Plaintiff told the judge that in December 2004, she and defendant were the only persons living in the house and she had not stored the papers in that manner. She testified she therefore believed defendant had stacked the papers in that manner, with the intention of burning the place down. Plaintiff introduced photographs depicting the water heater with newspapers propped up against it with a stick. Plaintiff's new boyfriend, M.S., testified as to his knowledge of the ongoing nature of the relationship between plaintiff and defendant. Most of his testimony, however, was based upon information given to him by plaintiff. He did testify that he had to tackle defendant on one occasion in order to prevent him from going after plaintiff.

Defendant denied being behind plaintiff's house on August 14, 2005. He also denied being drunk in the bar on August 6, 2005 (July 30, 2005), when he allegedly called plaintiff names. Defendant similarly denied stacking newspapers up against the water heater.

The judge found plaintiff had not presented sufficient proof to support her allegations that defendant committed acts of domestic violence on August 6 (July 30, 2005) and August 14, 2005. Nonetheless, the judge concluded he had to "take the 30th of July and the 14th of August in the context of these photographs." He then reasoned:

The Defendant denies any connection with these. The Plaintiff indicates that he's the only one that could have done it. That he was the only one who was staying there at the time. She certainly didn't do it. He had made threats in the past to burn down the house. And my job is to decide what's more likely than not happened. I certainly wasn't there. I didn't see who rolled up those newspapers, turned up the hot water heater and propped them up with that board, but I think that it's more likely than not that the Defendant did. And, again the incidents of the 30th of July and the 14th of August, in my view, don't qualify on their own, but in light of my finding that the Defendant, as a matter of fact in a legal proceeding, is responsible for propping up those newspapers in the vicinity of the hot water heater. . . . I find that you've made out a case of harassment and I'm going to give you a restraining order.

In J.F. v. B.K., 308 N.J. Super. 387 (App. Div. 1998), we held that "[i]t constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." Id. at 391-92. There, defendant was convicted of committing an act of domestic violence, not based upon the specific allegation contained in the complaint, but instead based upon "a course of prior conduct which, with the exception of one incident which occurred in the spring of 1993, was not even mentioned in the complaint." Id. at 391. This fundamental principle was reiterated five years later by the Supreme Court in its decision in H.E.S. v. J.C.S., 175 N.J. 309, 325 (2003).

Defendant argues that his fundamental rights to due process were violated when the FRO was based upon uncharged acts of domestic violence. In response, plaintiff contends defendant had sufficient notice to defend against the allegations because her complaint alleges several threats directed at her from defendant, including the threat to burn her house down.

We conclude plaintiff's allegations in the complaint gave defendant no notice of a claim that, on or before January 12, 2005, defendant attempted to burn the house down by placing newspapers up against the water heater. Although plaintiff alleges in the complaint that defendant threatened to burn her house down on August 14, 2005, she testified at trial that defendant actually threatened to turn her in to the IRS. While the past history of domestic violence between plaintiff and defendant, whether charged or uncharged, was relevant to determine if plaintiff had proved the predicate offenses of harassment stemming from the incidents of August and July 2005, it was error to use the past history as a basis for finding that defendant committed an act of domestic violence sometime prior to January 12, 2005, which is when plaintiff believed the papers were propped up against the water heater.

How a court may consider the past history of domestic violence in a domestic violence hearing was best explained in Cesare v. Cesare, 154 N.J. 394 (1998), where the Court stated that the Prevention of Domestic Violence Act (Act):

require[s] that "acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties." [Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). Accord Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995).] Although a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis. Therefore, not only may one sufficiently egregious action constitute domestic violence under the Act, even with no history of abuse between the parties, but a court may also determine that an ambiguous incident qualifies as prohibited conduct, based on a finding of violence in the parties' past.

[Id. at 402.]

In reaching this conclusion, the Court referenced its earlier decision in State v. Hoffman, 149 N.J. 564 (1997), where it explained that an analysis of whether an underlying act of harassment in the context of domestic violence has occurred requires consideration of the totality of the circumstances to determine whether the harassment statute has been violated. Id. at 584-85.

Thus, it was appropriate in the present case for the trial court to consider the prior history of domestic violence between plaintiff and defendant. Had plaintiff testified during the hearing that defendant threatened to burn down her house on July 30 and/or August 14, 2005, the prior incident could have placed plaintiff's expressed fear of defendant in the proper context for purposes of the court's determination that an act of domestic violence had been committed. Ibid. However, once the court determined plaintiff failed to prove defendant committed any acts of domestic violence on July 30 and August 14, 2005, the judge was constitutionally prohibited from finding the commission of an act of domestic violence based upon allegations about which defendant had no notice prior to plaintiff's testimony. H.E.S., supra, 175 N.J. at 325.

Reversed.

 

The victim testified that the incident actually occurred on July 30, 2005.

(continued)

(continued)

9

A-0649-05T3

May 24, 2006